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COMMITTEE AGAINST TORTURE BEGINS REVIEW OF REPORT OF POLAND
10 May 2007
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Committee against Torture
10 May 2007
The Committee against Torture this morning began its consideration of the fourth periodic report of Poland 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, Andrzej Duda, Under-Secretary of State at the Ministry of Justice of Poland, said that, on 1 September 2003, the Polish legal order had been extended by the institution of permission for tolerated stay – protection against the expulsion of aliens when in the territory of Poland. From the introduction of that measure until early 2007, tolerated stay permits had been granted to 4,400 aliens, first and foremost because of the threat of a violation of their rights, including subjection to torture or other inhuman or degrading treatment or punishment, in those persons' country of origin. That underscored Poland's full compliance with the principle of non-refoulement.
Furthermore, in line with the Committee's recommendations, Poland had taken measures to combat the abuse of young soldiers (the so-called "wave" phenomenon) in the army. Thanks to the implementation of the programme of the Ministry of National Defence in that regard, the launch of the Military Helpline, and meetings conducted in military units devoted to the problem of the "wave", the scale of the problem had been markedly reduced. Moreover, starting in 2003, the crime rate in the military had been gradually declining, Mr. Duda concluded.
Serving as Rapporteur for the report of Poland, Committee Expert Claudio Grossman said he was concerned about the new provision for the granting of tolerated stays for aliens in Poland who had not been granted asylum but could not be returned to their countries of origin. It seemed that aliens under the tolerated stay regime did not have the same rights as other asylum-seekers in Poland, in particular with regard to housing, education and medical care.
Luis Gallegos Chiriboga, the Committee Expert serving as Co-Rapporteur for the report of Poland, while welcoming the many new measures with regard to training of penitentiary staff in Poland, drew attention to the fact that there was no programme to evaluate that training and the effects it had. Such an analysis was needed.
Other Committee Experts asked questions and requested further information on a number of subjects related to, among other things, the issue of secret detentions and the Parliamentary investigation undertaken in that regard; allegations of excessive use of force by the police, in particular with regard to the use of firearms; provisions for unaccompanied minors seeking asylum; cases of sexual abuse in the prisons, and measures to prevent it; the incidence of racially motivated violence, given the low number of investigations into such complaints; and statistics on violence against homosexuals and lesbians and prosecutions brought relating to such actions.
Also representing the delegation of Poland was Zdzis³aw Rapacki, Permanent Representative of Poland to the United Nations Office at Geneva, as well as a number of other representatives from the Permanent Mission; and representatives of the Ministry of Justice of Poland, the Prison Service, the National Police, and the Office for Repatriation of Aliens.
The delegation will return to the Committee at 3 p.m. on Friday, 11 May, to provide its responses to the questions raised today.
Poland is among the 144 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.
At the beginning of the meeting Committee Chairperson Andreas Mavrommatis announced that the Bureau had agreed, on an experimental basis, to change reporting requirements for States parties that had already submitted an initial report. States parties would not be required to submit the usual periodic reports; written replies by States parties to the list of issues by Experts would be considered in lieu of a report.
At the end of the morning, Committee Expert Guibril Camara briefly presented updated information concerning reservations and the work of the Working Group on Reservations, which had been established with a view to harmonizing practice regarding reservations to treaties among the human rights treaty bodies.
When the Committee reconvenes at 3 p.m. this afternoon, it will hear the answers of Japan to the questions posed by Experts on Wednesday, 9 May.
Report of Poland
The fourth periodic report of Poland (CAT/C/67/Add.5) notes that, on 5 April 2004, Poland signed the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In terms of the status of the Convention in the Polish legal system, the Convention against Torture may be applied directly and has precedence over laws. By the same token, the definition of torture contained in the Convention is a part of universally binding Polish law. Poland is also bound by other agreements of the same rank pertaining to the issues relevant to the Convention, such as the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment of 1987 and its Optional Protocols 1 and 2. In addition to Constitutional provisions prohibiting torture, relevant provisions preventing the use of torture or other cruel, inhuman, or degrading treatment or punishment are also contained in acts regulating the principles of operation of the Police, the Border Guard, the State Protection Office, the Agency of Internal Security, the Intelligence Agency, the Prison Service, and the Communal Guard.
In reference to the observations of the Committee related to the phenomenon of the abuse of junior soldiers, the so-called wave phenomenon, practices used in the army which consist of exploiting and humiliating recruits, the Government of Poland, and in particular the Ministry of National Defence, has taken measures, and surveys show a significant limitation of the abuse of junior soldiers in recent years (in 1998 approximately 74 per cent of soldiers in mandatory military service said they experienced such treatment, as compared with 36 per cent at present). Those measures include the holding of 54,372 meetings between 1998 and 2003 to raise legal awareness in the military environment; periodic audits of documentation of all criminal cases where the appearance of this phenomenon has been detected; and close analysis of information on suspected commissions of an offence related to the "wave" phenomenon in the military environment. A major project contributing to restraining the phenomenon of the abuse of junior soldiers was the inauguration as of 1 February 2002, on principles defined by the Minister of National Defence, of the Military Telephone Helpline. It is available to soldiers, their families and close friends, and makes it possible to report on problems connected with phenomenon of the abuse of junior soldiers. On the basis of reports to the Military Telephone Helpline last year up to twenty soldiers, perpetrators of offences of abuse of junior soldiers, were brought to military court.
Presentation of Report
ANDRZEJ DUDA, Under-Secretary of State at the Ministry of Justice of Poland, said that Poland was committed to ongoing efforts on the basis of international law aiming at a complete adjustment to international human rights standards. It was worth noting that Poland had for a number of years made regular contributions to the UN Voluntary Fund for Victims of Torture.
On 14 September 2005, Poland had ratified the Optional Protocol to the Convention against Torture, thus becoming one of the first States to do so, Mr. Duda underscored. By ratifying the Protocol, Poland had committed itself to the establishment of a national preventive mechanism to monitor the manner of treatment of persons deprived of their liberty in places of detention. In order to meet those requirements, that task had been entrusted to an independent authority – the Ombudsman. Training sessions of the Ombudsman's team to prepare its staff to implement the tasks of the national prevention mechanism were currently in progress.
One of the major changes in Polish legislation related to the Convention had been the amendment to the Constitution pursuant to the Law of 8 September 2006, according to which extradition was prohibited not only when it concerned a person suspected of committing an offence without the use of violence for political reasons, but also when such extradition would infringe on the freedoms and rights of individuals. Mr. Duda observed that the current provision was a constitutional guarantee that persons subject to extradition proceedings, in the event of a possible violation of their rights through the threat of being subjected to torture, would not be extradited.
On 1 September 2003, the Polish legal order had been extended by the institution of permission for tolerated stay – protection against the expulsion of aliens when in the territory of Poland. From the introduction of that measure until early 2007, tolerated stay permits had been granted to 4,400 aliens, first and foremost because of the threat of a violation of their rights, including subjection to torture or other inhuman or degrading treatment or punishment, in those persons' country of origin. That underscored Poland's full compliance with the principle of non-refoulement, Mr. Duda stressed.
Mr. Duda then drew attention to ongoing work to amend the Polish Penal Code. One of the most significant changes involved the implementation in the domestic legal order of the Statute of the International Criminal Court. In addition, the intended amendment to the Executive Penal Code envisaged the establishment of the Assistance Fund for Victims of Violence, with resources earmarked for the implementation of tasks related to the provision of assistance to crime victims and their relatives. Work was also in progress on the draft self-amendment to the law on access to cost-free legal aid granted by the State to guarantee wide access to free legal aid.
In 2004, the Polish Police had introduced a network of Commanders' Plenipotentiaries for the Protection of Human Rights. The Plenipotentiaries had been appointed at the central and provincial levels as well as in all police schools to focus and systematize efforts aimed at improving human rights awareness among the police force. Moreover, issues related to professional ethics and human rights had been included in the curricula at each level of police training, with special stress on the prohibition of torture and inhuman or degrading treatment. Mr. Duda observed that regular trainings for officers of uniformed services had markedly improved the quality of the work of the police.
Overcrowding of correctional facilities and detention centres was a serious problem in the Polish penitentiary system, Mr. Duda said. To address that, a number of organizational and adaptive actions had been carried out as a result of which some of the rooms of the correctional facilities functioning in other capacities had been converted into living quarters. During the period from 1999 to 2005, correctional facilities and detention centres had increased capacity by 5,591 places. Further, actions taken and planned to alleviate overcrowding during 2006 to 2009 would extend the accommodation base for detainees by another 26,000 places.
Also worthy of note, Mr. Duda said, was the new institution of the Ombudsman for Mental Hospital Patients, which had been in operation since 2006. The Ombudsman's office was entrusted with providing assistance to individuals who complained their rights had been violated during admission, or with regard to treatment, conditions of stay, and discharge, including assistance in drafting the oral and written complaints of those persons, and initiating and carrying out educational and information actions on the rights of persons in psychiatric institutions.
Furthermore, in line with the Committee's recommendations, Poland had taken measures to combat the abuse of young soldiers (the so-called "wave" phenomenon) in the army. Thanks to the implementation of the programme of the Ministry of National Defence in that regard, the launch of the Military Helpline, and meetings conducted in military units devoted to the problem of the "wave", the scale of the problem had been markedly reduced. Moreover, starting in 2003, the crime rate in the military had been gradually declining, Mr. Duda concluded.
Questions Raised by Committee Experts
CLAUDIO GROSSMAN, the Committee Expert serving as Rapporteur for the report of Poland, welcomed the many steps that Poland had taken to fulfil its obligations under the Convention. However, it was always possible to improve and, indeed, a constant process of review and improvement was required. In that connection training was essential, and that training should be as concrete as possible, interactive rather than formalistic. The efforts made in that regard by training sessions were commendable, and he would appreciate more information on those training programmes, if only to be able to share best practices with other countries.
Regarding the definition of torture in Polish law, while noting Poland's argument that the Convention had been incorporated into the Polish legal order, Mr. Grossman said, nevertheless, it was the Committee's philosophy that there should only be one definition of torture in a given legal system. A specific, unified criminal provision against torture was beneficial for many reasons, including for clarity and as a deterrent to such practices.
The use of shackles by prison staff, as permitted by Polish law, was contrary to European Union law, Mr. Grossman pointed out. What was the current status of the use of shackles in the Polish prisons: was it frequently used? And were there plans to abolish the practice?
In terms of access to a lawyer during detention situations, Mr. Grossman was unclear on the right to speak to a lawyer in private under Polish law, and would appreciate clarification.
Regarding cost-free legal assistance, Mr. Grossman noted that there was a draft law currently before the legislature on that issue, and asked for further details of when that might be passed. It was a matter of concern that, under current law, legal aid was not required for individuals facing charges that bore sentences of less than three years. In addition, it would be a good idea to place special duties, including standards of conduct, on lawyers acting in ex officio cases, such as providing legal aid.
Mr. Grossman was pleased to note that a draft code of conduct of crime victims was being prepared within the context of the national programme for crime victims. However, he noted the information that no statistics on victims disaggregated by sex and age existed and he wondered if anything was being done to address that.
Mr. Grossman also wished to hear what Poland's stance was on the issue of diplomatic assurances, in the context of deportations, and what was the current practice in that regard in Poland.
Regarding the new provision for the granting of tolerated stays for aliens in Poland who had not been granted asylum but could not be returned to their countries of origin, Mr. Grossman was concerned that aliens under the tolerated stay regime did not have the same rights as other asylum-seekers in Poland, in particular with regard to housing, education and medical care.
Mr. Grossman also wished to hear an update on the new code of juvenile justice, which Poland had indicated was being drafted. In that connection, he was concerned about provisions for the interrogation of juveniles.
LUIS GALLEGOS CHIRIBOGA, the Committee Expert serving as Co-Rapporteur for the report of Poland, while welcoming the many new measures with regard to training of penitentiary staff, drew attention to the fact that there was no programme to evaluate that training and the effects it had. Such an analysis was needed.
Mr. Gallegos found that in different parts of the report there had been apparently conflicting information about the time limits for pre-trial detention. The report had said in one section that pre-trial detention could not exceed two years. Later, maximum pre-trial detention was said to be 12 months. Still later, it was stated that under Polish law there was no maximum time limit for such detention. He would appreciate clarification.
In terms of the investigation into allegations of secret detentions and renditions undertaken by the Polish Parliament, Mr. Gallegos asked if that inquiry had had investigative powers, including to search premises and to compel witnesses to testify.
In terms of violence against women, Mr. Gallegos was troubled by the very low figures set out in the report according to which, during the period 2003-2006, the police had received only seven complaints concerning violence against women, only one of which had been confirmed; and that, within the same period, only four complaints against sexual harassment and rape had been lodged, of which only one had been confirmed and handed over to the Prosecutor’s Office.
On trafficking, Mr. Gallegos reiterated the position of the Committee on the Elimination of Discrimination against Women that a specific provision was needed to criminalize trafficking in the Polish Criminal Code.
Other Committee Experts asked questions and requested further information on a number of subjects related to, among other things, the definition of terrorism in the Criminal Code; the issue of secret detentions and the Parliamentary investigation undertaken in that regard; allegations of excessive use of force by the police, in particular with regard to the use of firearms; provisions for unaccompanied minors seeking asylum; cases of sexual abuse in the prisons, and measures to prevent it; the incidence of racially motivated violence, given the low number of investigations into such complaints; and statistics on violence against homosexuals and lesbians and prosecutions brought relating to such actions.
Working Group on Reservations
GUIBRIL CAMARA, Committee Expert, briefly presented updated information concerning reservations and the work of the Working Group on Reservations, which had been established with a view to harmonizing practice regarding reservations to treaties among the human rights treaty bodies. One of the major issues had been whether the Vienna Convention on the Law of Treaties, which dated to 1969, was applicable to international treaties enacted subsequently, such as the Convention against Torture. Among principles agreed were that a reservation should not be made where the treaty did not accept such reservations; and a reservation should not be made if it ran counter to the purpose of the instrument.
The ensuing discussion among Experts turned on, among other things, criteria for the validity of reservations, who was competent to rule on the validity of reservations, and what the effect of an invalid reservation was. An Expert brought up the case of States that, not having made a reservation at the time of ratification of a treaty, later refused to implement a particular provision. He felt that the Working Group should address that situation. An Expert said that, in his view, the Committee had the mandate to interpret the Convention, and it should be the sole arbiter of whether a State party's actions were compatible with the aims of the Convention or if their reservations were valid or not. The Chairperson disagreed, but felt that that issue should be taken up in the meeting with States parties.
__________
For use of the information media; not an official record
10 May 2007
The Committee against Torture this morning began its consideration of the fourth periodic report of Poland 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, Andrzej Duda, Under-Secretary of State at the Ministry of Justice of Poland, said that, on 1 September 2003, the Polish legal order had been extended by the institution of permission for tolerated stay – protection against the expulsion of aliens when in the territory of Poland. From the introduction of that measure until early 2007, tolerated stay permits had been granted to 4,400 aliens, first and foremost because of the threat of a violation of their rights, including subjection to torture or other inhuman or degrading treatment or punishment, in those persons' country of origin. That underscored Poland's full compliance with the principle of non-refoulement.
Furthermore, in line with the Committee's recommendations, Poland had taken measures to combat the abuse of young soldiers (the so-called "wave" phenomenon) in the army. Thanks to the implementation of the programme of the Ministry of National Defence in that regard, the launch of the Military Helpline, and meetings conducted in military units devoted to the problem of the "wave", the scale of the problem had been markedly reduced. Moreover, starting in 2003, the crime rate in the military had been gradually declining, Mr. Duda concluded.
Serving as Rapporteur for the report of Poland, Committee Expert Claudio Grossman said he was concerned about the new provision for the granting of tolerated stays for aliens in Poland who had not been granted asylum but could not be returned to their countries of origin. It seemed that aliens under the tolerated stay regime did not have the same rights as other asylum-seekers in Poland, in particular with regard to housing, education and medical care.
Luis Gallegos Chiriboga, the Committee Expert serving as Co-Rapporteur for the report of Poland, while welcoming the many new measures with regard to training of penitentiary staff in Poland, drew attention to the fact that there was no programme to evaluate that training and the effects it had. Such an analysis was needed.
Other Committee Experts asked questions and requested further information on a number of subjects related to, among other things, the issue of secret detentions and the Parliamentary investigation undertaken in that regard; allegations of excessive use of force by the police, in particular with regard to the use of firearms; provisions for unaccompanied minors seeking asylum; cases of sexual abuse in the prisons, and measures to prevent it; the incidence of racially motivated violence, given the low number of investigations into such complaints; and statistics on violence against homosexuals and lesbians and prosecutions brought relating to such actions.
Also representing the delegation of Poland was Zdzis³aw Rapacki, Permanent Representative of Poland to the United Nations Office at Geneva, as well as a number of other representatives from the Permanent Mission; and representatives of the Ministry of Justice of Poland, the Prison Service, the National Police, and the Office for Repatriation of Aliens.
The delegation will return to the Committee at 3 p.m. on Friday, 11 May, to provide its responses to the questions raised today.
Poland is among the 144 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.
At the beginning of the meeting Committee Chairperson Andreas Mavrommatis announced that the Bureau had agreed, on an experimental basis, to change reporting requirements for States parties that had already submitted an initial report. States parties would not be required to submit the usual periodic reports; written replies by States parties to the list of issues by Experts would be considered in lieu of a report.
At the end of the morning, Committee Expert Guibril Camara briefly presented updated information concerning reservations and the work of the Working Group on Reservations, which had been established with a view to harmonizing practice regarding reservations to treaties among the human rights treaty bodies.
When the Committee reconvenes at 3 p.m. this afternoon, it will hear the answers of Japan to the questions posed by Experts on Wednesday, 9 May.
Report of Poland
The fourth periodic report of Poland (CAT/C/67/Add.5) notes that, on 5 April 2004, Poland signed the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In terms of the status of the Convention in the Polish legal system, the Convention against Torture may be applied directly and has precedence over laws. By the same token, the definition of torture contained in the Convention is a part of universally binding Polish law. Poland is also bound by other agreements of the same rank pertaining to the issues relevant to the Convention, such as the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment of 1987 and its Optional Protocols 1 and 2. In addition to Constitutional provisions prohibiting torture, relevant provisions preventing the use of torture or other cruel, inhuman, or degrading treatment or punishment are also contained in acts regulating the principles of operation of the Police, the Border Guard, the State Protection Office, the Agency of Internal Security, the Intelligence Agency, the Prison Service, and the Communal Guard.
In reference to the observations of the Committee related to the phenomenon of the abuse of junior soldiers, the so-called wave phenomenon, practices used in the army which consist of exploiting and humiliating recruits, the Government of Poland, and in particular the Ministry of National Defence, has taken measures, and surveys show a significant limitation of the abuse of junior soldiers in recent years (in 1998 approximately 74 per cent of soldiers in mandatory military service said they experienced such treatment, as compared with 36 per cent at present). Those measures include the holding of 54,372 meetings between 1998 and 2003 to raise legal awareness in the military environment; periodic audits of documentation of all criminal cases where the appearance of this phenomenon has been detected; and close analysis of information on suspected commissions of an offence related to the "wave" phenomenon in the military environment. A major project contributing to restraining the phenomenon of the abuse of junior soldiers was the inauguration as of 1 February 2002, on principles defined by the Minister of National Defence, of the Military Telephone Helpline. It is available to soldiers, their families and close friends, and makes it possible to report on problems connected with phenomenon of the abuse of junior soldiers. On the basis of reports to the Military Telephone Helpline last year up to twenty soldiers, perpetrators of offences of abuse of junior soldiers, were brought to military court.
Presentation of Report
ANDRZEJ DUDA, Under-Secretary of State at the Ministry of Justice of Poland, said that Poland was committed to ongoing efforts on the basis of international law aiming at a complete adjustment to international human rights standards. It was worth noting that Poland had for a number of years made regular contributions to the UN Voluntary Fund for Victims of Torture.
On 14 September 2005, Poland had ratified the Optional Protocol to the Convention against Torture, thus becoming one of the first States to do so, Mr. Duda underscored. By ratifying the Protocol, Poland had committed itself to the establishment of a national preventive mechanism to monitor the manner of treatment of persons deprived of their liberty in places of detention. In order to meet those requirements, that task had been entrusted to an independent authority – the Ombudsman. Training sessions of the Ombudsman's team to prepare its staff to implement the tasks of the national prevention mechanism were currently in progress.
One of the major changes in Polish legislation related to the Convention had been the amendment to the Constitution pursuant to the Law of 8 September 2006, according to which extradition was prohibited not only when it concerned a person suspected of committing an offence without the use of violence for political reasons, but also when such extradition would infringe on the freedoms and rights of individuals. Mr. Duda observed that the current provision was a constitutional guarantee that persons subject to extradition proceedings, in the event of a possible violation of their rights through the threat of being subjected to torture, would not be extradited.
On 1 September 2003, the Polish legal order had been extended by the institution of permission for tolerated stay – protection against the expulsion of aliens when in the territory of Poland. From the introduction of that measure until early 2007, tolerated stay permits had been granted to 4,400 aliens, first and foremost because of the threat of a violation of their rights, including subjection to torture or other inhuman or degrading treatment or punishment, in those persons' country of origin. That underscored Poland's full compliance with the principle of non-refoulement, Mr. Duda stressed.
Mr. Duda then drew attention to ongoing work to amend the Polish Penal Code. One of the most significant changes involved the implementation in the domestic legal order of the Statute of the International Criminal Court. In addition, the intended amendment to the Executive Penal Code envisaged the establishment of the Assistance Fund for Victims of Violence, with resources earmarked for the implementation of tasks related to the provision of assistance to crime victims and their relatives. Work was also in progress on the draft self-amendment to the law on access to cost-free legal aid granted by the State to guarantee wide access to free legal aid.
In 2004, the Polish Police had introduced a network of Commanders' Plenipotentiaries for the Protection of Human Rights. The Plenipotentiaries had been appointed at the central and provincial levels as well as in all police schools to focus and systematize efforts aimed at improving human rights awareness among the police force. Moreover, issues related to professional ethics and human rights had been included in the curricula at each level of police training, with special stress on the prohibition of torture and inhuman or degrading treatment. Mr. Duda observed that regular trainings for officers of uniformed services had markedly improved the quality of the work of the police.
Overcrowding of correctional facilities and detention centres was a serious problem in the Polish penitentiary system, Mr. Duda said. To address that, a number of organizational and adaptive actions had been carried out as a result of which some of the rooms of the correctional facilities functioning in other capacities had been converted into living quarters. During the period from 1999 to 2005, correctional facilities and detention centres had increased capacity by 5,591 places. Further, actions taken and planned to alleviate overcrowding during 2006 to 2009 would extend the accommodation base for detainees by another 26,000 places.
Also worthy of note, Mr. Duda said, was the new institution of the Ombudsman for Mental Hospital Patients, which had been in operation since 2006. The Ombudsman's office was entrusted with providing assistance to individuals who complained their rights had been violated during admission, or with regard to treatment, conditions of stay, and discharge, including assistance in drafting the oral and written complaints of those persons, and initiating and carrying out educational and information actions on the rights of persons in psychiatric institutions.
Furthermore, in line with the Committee's recommendations, Poland had taken measures to combat the abuse of young soldiers (the so-called "wave" phenomenon) in the army. Thanks to the implementation of the programme of the Ministry of National Defence in that regard, the launch of the Military Helpline, and meetings conducted in military units devoted to the problem of the "wave", the scale of the problem had been markedly reduced. Moreover, starting in 2003, the crime rate in the military had been gradually declining, Mr. Duda concluded.
Questions Raised by Committee Experts
CLAUDIO GROSSMAN, the Committee Expert serving as Rapporteur for the report of Poland, welcomed the many steps that Poland had taken to fulfil its obligations under the Convention. However, it was always possible to improve and, indeed, a constant process of review and improvement was required. In that connection training was essential, and that training should be as concrete as possible, interactive rather than formalistic. The efforts made in that regard by training sessions were commendable, and he would appreciate more information on those training programmes, if only to be able to share best practices with other countries.
Regarding the definition of torture in Polish law, while noting Poland's argument that the Convention had been incorporated into the Polish legal order, Mr. Grossman said, nevertheless, it was the Committee's philosophy that there should only be one definition of torture in a given legal system. A specific, unified criminal provision against torture was beneficial for many reasons, including for clarity and as a deterrent to such practices.
The use of shackles by prison staff, as permitted by Polish law, was contrary to European Union law, Mr. Grossman pointed out. What was the current status of the use of shackles in the Polish prisons: was it frequently used? And were there plans to abolish the practice?
In terms of access to a lawyer during detention situations, Mr. Grossman was unclear on the right to speak to a lawyer in private under Polish law, and would appreciate clarification.
Regarding cost-free legal assistance, Mr. Grossman noted that there was a draft law currently before the legislature on that issue, and asked for further details of when that might be passed. It was a matter of concern that, under current law, legal aid was not required for individuals facing charges that bore sentences of less than three years. In addition, it would be a good idea to place special duties, including standards of conduct, on lawyers acting in ex officio cases, such as providing legal aid.
Mr. Grossman was pleased to note that a draft code of conduct of crime victims was being prepared within the context of the national programme for crime victims. However, he noted the information that no statistics on victims disaggregated by sex and age existed and he wondered if anything was being done to address that.
Mr. Grossman also wished to hear what Poland's stance was on the issue of diplomatic assurances, in the context of deportations, and what was the current practice in that regard in Poland.
Regarding the new provision for the granting of tolerated stays for aliens in Poland who had not been granted asylum but could not be returned to their countries of origin, Mr. Grossman was concerned that aliens under the tolerated stay regime did not have the same rights as other asylum-seekers in Poland, in particular with regard to housing, education and medical care.
Mr. Grossman also wished to hear an update on the new code of juvenile justice, which Poland had indicated was being drafted. In that connection, he was concerned about provisions for the interrogation of juveniles.
LUIS GALLEGOS CHIRIBOGA, the Committee Expert serving as Co-Rapporteur for the report of Poland, while welcoming the many new measures with regard to training of penitentiary staff, drew attention to the fact that there was no programme to evaluate that training and the effects it had. Such an analysis was needed.
Mr. Gallegos found that in different parts of the report there had been apparently conflicting information about the time limits for pre-trial detention. The report had said in one section that pre-trial detention could not exceed two years. Later, maximum pre-trial detention was said to be 12 months. Still later, it was stated that under Polish law there was no maximum time limit for such detention. He would appreciate clarification.
In terms of the investigation into allegations of secret detentions and renditions undertaken by the Polish Parliament, Mr. Gallegos asked if that inquiry had had investigative powers, including to search premises and to compel witnesses to testify.
In terms of violence against women, Mr. Gallegos was troubled by the very low figures set out in the report according to which, during the period 2003-2006, the police had received only seven complaints concerning violence against women, only one of which had been confirmed; and that, within the same period, only four complaints against sexual harassment and rape had been lodged, of which only one had been confirmed and handed over to the Prosecutor’s Office.
On trafficking, Mr. Gallegos reiterated the position of the Committee on the Elimination of Discrimination against Women that a specific provision was needed to criminalize trafficking in the Polish Criminal Code.
Other Committee Experts asked questions and requested further information on a number of subjects related to, among other things, the definition of terrorism in the Criminal Code; the issue of secret detentions and the Parliamentary investigation undertaken in that regard; allegations of excessive use of force by the police, in particular with regard to the use of firearms; provisions for unaccompanied minors seeking asylum; cases of sexual abuse in the prisons, and measures to prevent it; the incidence of racially motivated violence, given the low number of investigations into such complaints; and statistics on violence against homosexuals and lesbians and prosecutions brought relating to such actions.
Working Group on Reservations
GUIBRIL CAMARA, Committee Expert, briefly presented updated information concerning reservations and the work of the Working Group on Reservations, which had been established with a view to harmonizing practice regarding reservations to treaties among the human rights treaty bodies. One of the major issues had been whether the Vienna Convention on the Law of Treaties, which dated to 1969, was applicable to international treaties enacted subsequently, such as the Convention against Torture. Among principles agreed were that a reservation should not be made where the treaty did not accept such reservations; and a reservation should not be made if it ran counter to the purpose of the instrument.
The ensuing discussion among Experts turned on, among other things, criteria for the validity of reservations, who was competent to rule on the validity of reservations, and what the effect of an invalid reservation was. An Expert brought up the case of States that, not having made a reservation at the time of ratification of a treaty, later refused to implement a particular provision. He felt that the Working Group should address that situation. An Expert said that, in his view, the Committee had the mandate to interpret the Convention, and it should be the sole arbiter of whether a State party's actions were compatible with the aims of the Convention or if their reservations were valid or not. The Chairperson disagreed, but felt that that issue should be taken up in the meeting with States parties.
__________
For use of the information media; not an official record
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