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COMMITTEE AGAINST TORTURE HEARS RESPONSE OF POLAND
11 May 2007
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Committee against Torture
11 May 2007
The Committee against Torture this afternoon heard the response of Poland to questions raised by Committee Experts on the fourth periodic report of that country on how it is implementing the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Responding to a series of questions raised by the Committee members on Thursday, 10 May, the delegation, which was led by Andrzej Duda, Under-Secretary of State at the Ministry of Justice of Poland, underscored that there were no secret prisons in Poland for the detention of terrorist suspects, nor had there ever been such prisons. They would violate Polish law and the international conventions to which Poland was a party. Nor did Poland participate in extraordinary renditions in the context of the fight against terrorism.
Concerning time limits for pre-trial detentions, in Poland, preliminary detentions generally did not extend beyond three months. Thereafter, by judicial order, preliminary detention could be extended for 12 months. In any case, the delegation said, two years was the maximum limit for such detentions – but with exceptions provided for in law. An extension beyond two years required the decision of a court of higher instance and it had to be occasioned by extraordinary circumstances that would make the conclusion of the investigation impossible in a shorter time.
The Committee will submit its conclusions and recommendations on the report of Poland towards the end of the session on Friday, 18 May 2007.
As one of the 144 States parties to the Convention against Torture, Poland is obliged to provide the Committee with periodic reports on the measures it has undertaken to fight torture.
The Committee might have a brief public meeting on the morning of Monday, 14 May, to prepare for its meeting with States parties, which will be held on Tuesday, 15 May in the morning.
Response of Poland
Responding to a series of questions raised by Committee Experts on Thursday, 10 May, the delegation of Poland said that, with regard to migration issues, it was true that there had been a decline in applications for refugee status in Poland. There had been two main reasons for that. First, as noted by the UN Refugee Agency, there had been a global trend towards a decline in such applications in 2005, in particular with regard to Europe. The second reason was Poland's admission to the European Union and the consequent application of mechanisms such as the Dublin procedure.
On the issue of the ruling handed down by the European Union Court of Human Rights on the loopholes concerning the grounds for detaining an alien within an international airport in Poland, the delegation recalled that that decision of the Court had dealt with a case and had since been amended twice. The maximum stay in an alien detention centre was one year. Such a detention order had to be made by the relevant court.
Regarding tolerated stays, it was true that the regime differed from those for aliens who had been granted the right to stay in the country. There were also different rights applicable to different categories of aliens who had been granted stay in the country. Such an approach was neither irrational nor unjust, the delegation commented. The rights of aliens staying in Poland arose from the reasons for which they were granted the stay. It was also worth noting that such aliens had the permission to work and had the same rights as citizens with regard social rights and benefits, including the right to health insurance.
Overcrowding was a problem at detention centres. For that reason, the delegation explained, Poland was planning on opening four up-to-date detention centres.
In terms of juvenile aliens, all procedures carried out were done with the best interests of the minor as the primary consideration. Psychological and health care were provided. All unaccompanied alien minors in Poland were in care and educational institutions or in foster families. An unaccompanied minor could only be sent back to his or her country of origin in accordance with the guidelines set down in the Convention on the Rights of the Child. However, no such deportation had ever occurred, the delegation noted.
Turning to issues of the police, a major development had been the appointment of the Commanders' Plenipotentiaries for the Protection of Human Rights, tasked with monitoring of awareness-raising activities among the police with regard to human rights; encouraging cooperation with national and ethnic minorities; and dissemination of knowledge and good practices related to human rights. As an example, in the context of the preparation for the presentation of Poland's fifth periodic report, the Commanders group had been reviewing Poland's previous report and the observations on it. That group would receive CD-ROMs of today's and yesterday's meeting, as well as the relevant documentation to study. In that way Poland was trying to raise awareness of the police at the executive level of the activities of the Committee against Torture.
Following a case involving coerced testimony through the use of force, the police had introduced a comprehensive whistle-blowing programme, the delegation said. The philosophy of that programme was that it was the responsibility of superior officers to lead by example, and to act quickly to address any cases of suspected improper activity.
On investigative procedures, the delegation said that, as from the moment of apprehension by the law enforcement authorities, a suspect had the right to contact a lawyer.
The principles for searching women suspects were laid down in the Code of Criminal Procedure, which required that, wherever possible, such searches should be carried out by a same-sex member of the police forces. However, in situations which required an immediate search, connected for example to the risk of loss or destruction of evidentiary material, it was possible for such a search to be carried out by a member of the opposite sex. The delegation gave, as an example, a police officer who witnessed a bank hold up and caught the perpetrator would be permitted to search that suspect on the spot for a firearm.
Regarding statistics on direct coercion and the use of the security cells, the delegation recalled that use of those measures was strictly regulated by the laws of the prison service, and that they were only applied when the prisoner presented a direct threat to others or was liable to escape. Moreover, the use of direct coercion measures had decreased from 2002 to 2006 from over 2,000 cases to 1,200 cases, or almost half. There had also been fewer uses of the protection cell: 1,200 in 2004, and only 807 in 2006.
In the delegation's opinion the "shackles" issue must have been occasioned by difficulties in translation. There were hand and leg cuffs. Leg cuffs were similar to handcuffs, but with a longer chain between them to permit the prisoner to walk, but not run. They were used as a preventive measure when transferring prisoners to avoid the possibility of the prisoner's escaping or harming others.
With regard to allegations about top-secret detention centres in Poland, a special task team had been appointed to investigate that matter and report its findings to the Polish Parliament. The Polish Parliament had received that report in 2005 and, further to its findings, flatly refuted all allegations of the existence of secret prisons in Poland where aliens suspected of terrorist activity were supposedly detained. The delegation underscored that there were no such prisons in Poland and there had never been any. Such prisons would violate the law of Poland and the international conventions to which it was a party. Nor did Poland participate in extraordinary renditions in the context of the fight against terrorism.
Furthermore, Poland had extended an invitation to Dick Marty, Chairperson of the Committee on Legal Affairs and Human Rights of the Council of Europe, who had undertaken a review of the issue of alleged secret detentions in European Union States, to investigate the Polish centres used by its secret services. He had not accepted that invitation, the delegation observed.
In terms of the new code of conduct for crime victims, since 2006, the Minister of Justice had launched a task force to prepare that code and was preparing a national network of aid for victims of crime. It envisaged, among others, the setting up of a mentor for victims who could work with them throughout the process of their case and care. Non-governmental organizations had been invited to work with the Government, and had already submitted their standards of conduct with regard to treatment of rape victims, victims of trafficking and victims of domestic violence, the delegation said.
On diplomatic assurances, the delegation said that Polish law had the principle of non-refoulement. Extradition procedures set out that, if there was a probability that a suspect would be subject to torture in a country requiring extradition, this formed an absolute bar to such extradition.
In Poland, preliminary detentions generally did not extend beyond three months. Thereafter, by judicial order, preliminary detention could be extended for 12 months. In any case, the delegation said, two years was the maximum limit for such detentions – but with exceptions provided for in law. An extension beyond two years required the decision of a court of higher instance and it had to be occasioned by extraordinary circumstances that would make the conclusion of the investigation impossible in a shorter time. Such a decision was appealable.
Only four complaints had been received from mental patients alleging sexual abuse. Upon investigation, however, it was found that those allegations had no substantive basis.
The age of criminal liability was 17 in Poland. In some special cases – such as for cases of homicide, gang rape, assault, or terrorist activities – the age was reduced to 15, but even then additional elements had to be met, including an evaluation of the circumstances and the mental maturity of the individual. Even if the court decided on isolation measures, those juveniles were not placed in correctional facilities, but in special rehabilitative centres. In any case, the delegation said a new Code of Juvenile Law was being drawn up.
Questions by Committee Experts
CLAUDIO GROSSMAN, the Committee Expert serving as Rapporteur for the report of Poland, thanked the delegation for its replies. He said that the issues that surfaced time and again in all the countries the Committee examined, as for Poland, were with regard to the treatment of immigrants and aliens; the treatment of vulnerable groups, such as those who spoke other languages; and the treatment of "politically unpopular clients" – such as terrorists and criminals.
On the tolerated stay regime, Mr. Grossman thanked the delegation for the information that such aliens had the permission to work and had social rights and benefits. He wondered, however, what was meant by the "right to health insurance". Did that mean that aliens under the tolerated stay regime were provided with health insurance, or that they were entitled to buy their own health insurance?
Mr. Grossman also welcomed the various measures that had been introduced with regard to preventing torture in the police force, in particular the training programmes to raise awareness and the whistle blower programme.
Mr. Grossman realized that there was a draft law in Poland to change the rules regarding legal aid, however, he would appreciate confirmation of information received whereby, under current provisions, access to a lawyer was mandatory (and legal assistance would be supplied) if the crime alleged bore a minimum sentence of over three years, but there was no mandatory legal assistance provided for a crime that bore a lower sentence.
With regard to juveniles, was it true that it was possible that a juvenile could sign a document in the context of an investigation without benefit of a lawyer's advice, Mr. Grossman asked?
Regarding anti-terrorism and human rights, Mr. Grossman took note of the statement made to the Committee that no secret detention centres existed now or in the past in Poland and that no extraordinary renditions had taken place.
LUIS GALLEGOS CHIRIBOGA, the Committee Expert serving as Co-Rapporteur for the report of Poland, thanked the delegation for its very well done presentation. He had been surprised, howver, that no Polish non-governmental organizations had shown up to meet with the Committee in the context of its consideration of the report. The process of change going on in Poland required civil society to be very active, not only to observe, but also to contribute to the evaluation of law.
Mr. Gallegos was concerned that in remodelling prisons to address overcrowding, Poland might be eliminating necessary space for recreation and other needs of prisoners.
One of the major concerns of the Committee was the issue of migrants and refugees. The issue of return of migrants and refugees would not go away. Mr. Gallegos said Europe would do well not to treat that as not just as a social problem – internal and external – but as a problem of international relations.
Other Experts then asked questions and asked for further information on a number of topics, including guarantees that a contemplated system for expedited trials sufficiently guaranteed the principle of presumption of innocence; the high number of cases of abuse by officials involving firearms; whether the report on the secret prisons undertaken by the Parliament, given that it had found no such prisons existed, would be publicly released; whether Polish forces serving in armed conflicts – in Afghanistan and Iraq, for example – had been prosecuted for crimes of torture; statistics on investigations and prosecutions with regard to hate crimes; and whether sexual orientation was covered under hate crime laws in Poland and whether statistics on such crimes were kept.
Regarding Turkish citizens who had not been returned by Poland to Turkey because of information provided by Amnesty International, an Expert wondered if that indicated that Poland had not sought diplomatic assurances from Turkey in those cases, or whether it had disregarded them.
Response by Delegation
Responding to additional questions raised, the delegation of Poland said that, regarding benefits for aliens under tolerated stay in Poland, the right to social welfare benefits was automatically granted. Regarding health insurance, the same principle applied to aliens that applied to citizens: either the person received health insurance as part of the benefits of their employment, or they had to pay health insurance premiums. Cost-free health care was provided in Poland to all persons under 18 years of age, and to pregnant women and nursing mothers.
In terms of detentions of juveniles, after an initial period of 24 hours a detainee had to appear before a judge to rule on whether an extension of the detention was merited. As far as a juvenile was concerned, that decision had to be taken by the Family Court. Therefore no juveniles were detained in a police station for over 24 hours, the delegation concluded. A statement made by a juvenile was only taken in the presence of a lawyer or his or her parent or guardian.
Regarding legal assistance, the delegation said that mandatory assistance was based on health or financial status of the suspect. The court then appointed a lawyer ex officio to assist the client.
No diplomatic assurances had been sought in the case of the Turkish citizens that had not been returned to Turkey. In Poland, diplomatic assurances were only sought in cases where the possibility existed that the person returned would be subject to the death penalty. Then Poland might seek an assurance that, even if they were sentenced to the death penalty, the death penalty would not be carried out, the delegation said.
Statistics on hate crimes involving racial discrimination could be included in Poland's next report. As far as hate crimes involving sexual preferences were concerned, Poland had no legislation specifically criminalizing hate crimes on that basis and therefore had no statistics.
_________
For use of the information media; not an official record
11 May 2007
The Committee against Torture this afternoon heard the response of Poland to questions raised by Committee Experts on the fourth periodic report of that country on how it is implementing the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Responding to a series of questions raised by the Committee members on Thursday, 10 May, the delegation, which was led by Andrzej Duda, Under-Secretary of State at the Ministry of Justice of Poland, underscored that there were no secret prisons in Poland for the detention of terrorist suspects, nor had there ever been such prisons. They would violate Polish law and the international conventions to which Poland was a party. Nor did Poland participate in extraordinary renditions in the context of the fight against terrorism.
Concerning time limits for pre-trial detentions, in Poland, preliminary detentions generally did not extend beyond three months. Thereafter, by judicial order, preliminary detention could be extended for 12 months. In any case, the delegation said, two years was the maximum limit for such detentions – but with exceptions provided for in law. An extension beyond two years required the decision of a court of higher instance and it had to be occasioned by extraordinary circumstances that would make the conclusion of the investigation impossible in a shorter time.
The Committee will submit its conclusions and recommendations on the report of Poland towards the end of the session on Friday, 18 May 2007.
As one of the 144 States parties to the Convention against Torture, Poland is obliged to provide the Committee with periodic reports on the measures it has undertaken to fight torture.
The Committee might have a brief public meeting on the morning of Monday, 14 May, to prepare for its meeting with States parties, which will be held on Tuesday, 15 May in the morning.
Response of Poland
Responding to a series of questions raised by Committee Experts on Thursday, 10 May, the delegation of Poland said that, with regard to migration issues, it was true that there had been a decline in applications for refugee status in Poland. There had been two main reasons for that. First, as noted by the UN Refugee Agency, there had been a global trend towards a decline in such applications in 2005, in particular with regard to Europe. The second reason was Poland's admission to the European Union and the consequent application of mechanisms such as the Dublin procedure.
On the issue of the ruling handed down by the European Union Court of Human Rights on the loopholes concerning the grounds for detaining an alien within an international airport in Poland, the delegation recalled that that decision of the Court had dealt with a case and had since been amended twice. The maximum stay in an alien detention centre was one year. Such a detention order had to be made by the relevant court.
Regarding tolerated stays, it was true that the regime differed from those for aliens who had been granted the right to stay in the country. There were also different rights applicable to different categories of aliens who had been granted stay in the country. Such an approach was neither irrational nor unjust, the delegation commented. The rights of aliens staying in Poland arose from the reasons for which they were granted the stay. It was also worth noting that such aliens had the permission to work and had the same rights as citizens with regard social rights and benefits, including the right to health insurance.
Overcrowding was a problem at detention centres. For that reason, the delegation explained, Poland was planning on opening four up-to-date detention centres.
In terms of juvenile aliens, all procedures carried out were done with the best interests of the minor as the primary consideration. Psychological and health care were provided. All unaccompanied alien minors in Poland were in care and educational institutions or in foster families. An unaccompanied minor could only be sent back to his or her country of origin in accordance with the guidelines set down in the Convention on the Rights of the Child. However, no such deportation had ever occurred, the delegation noted.
Turning to issues of the police, a major development had been the appointment of the Commanders' Plenipotentiaries for the Protection of Human Rights, tasked with monitoring of awareness-raising activities among the police with regard to human rights; encouraging cooperation with national and ethnic minorities; and dissemination of knowledge and good practices related to human rights. As an example, in the context of the preparation for the presentation of Poland's fifth periodic report, the Commanders group had been reviewing Poland's previous report and the observations on it. That group would receive CD-ROMs of today's and yesterday's meeting, as well as the relevant documentation to study. In that way Poland was trying to raise awareness of the police at the executive level of the activities of the Committee against Torture.
Following a case involving coerced testimony through the use of force, the police had introduced a comprehensive whistle-blowing programme, the delegation said. The philosophy of that programme was that it was the responsibility of superior officers to lead by example, and to act quickly to address any cases of suspected improper activity.
On investigative procedures, the delegation said that, as from the moment of apprehension by the law enforcement authorities, a suspect had the right to contact a lawyer.
The principles for searching women suspects were laid down in the Code of Criminal Procedure, which required that, wherever possible, such searches should be carried out by a same-sex member of the police forces. However, in situations which required an immediate search, connected for example to the risk of loss or destruction of evidentiary material, it was possible for such a search to be carried out by a member of the opposite sex. The delegation gave, as an example, a police officer who witnessed a bank hold up and caught the perpetrator would be permitted to search that suspect on the spot for a firearm.
Regarding statistics on direct coercion and the use of the security cells, the delegation recalled that use of those measures was strictly regulated by the laws of the prison service, and that they were only applied when the prisoner presented a direct threat to others or was liable to escape. Moreover, the use of direct coercion measures had decreased from 2002 to 2006 from over 2,000 cases to 1,200 cases, or almost half. There had also been fewer uses of the protection cell: 1,200 in 2004, and only 807 in 2006.
In the delegation's opinion the "shackles" issue must have been occasioned by difficulties in translation. There were hand and leg cuffs. Leg cuffs were similar to handcuffs, but with a longer chain between them to permit the prisoner to walk, but not run. They were used as a preventive measure when transferring prisoners to avoid the possibility of the prisoner's escaping or harming others.
With regard to allegations about top-secret detention centres in Poland, a special task team had been appointed to investigate that matter and report its findings to the Polish Parliament. The Polish Parliament had received that report in 2005 and, further to its findings, flatly refuted all allegations of the existence of secret prisons in Poland where aliens suspected of terrorist activity were supposedly detained. The delegation underscored that there were no such prisons in Poland and there had never been any. Such prisons would violate the law of Poland and the international conventions to which it was a party. Nor did Poland participate in extraordinary renditions in the context of the fight against terrorism.
Furthermore, Poland had extended an invitation to Dick Marty, Chairperson of the Committee on Legal Affairs and Human Rights of the Council of Europe, who had undertaken a review of the issue of alleged secret detentions in European Union States, to investigate the Polish centres used by its secret services. He had not accepted that invitation, the delegation observed.
In terms of the new code of conduct for crime victims, since 2006, the Minister of Justice had launched a task force to prepare that code and was preparing a national network of aid for victims of crime. It envisaged, among others, the setting up of a mentor for victims who could work with them throughout the process of their case and care. Non-governmental organizations had been invited to work with the Government, and had already submitted their standards of conduct with regard to treatment of rape victims, victims of trafficking and victims of domestic violence, the delegation said.
On diplomatic assurances, the delegation said that Polish law had the principle of non-refoulement. Extradition procedures set out that, if there was a probability that a suspect would be subject to torture in a country requiring extradition, this formed an absolute bar to such extradition.
In Poland, preliminary detentions generally did not extend beyond three months. Thereafter, by judicial order, preliminary detention could be extended for 12 months. In any case, the delegation said, two years was the maximum limit for such detentions – but with exceptions provided for in law. An extension beyond two years required the decision of a court of higher instance and it had to be occasioned by extraordinary circumstances that would make the conclusion of the investigation impossible in a shorter time. Such a decision was appealable.
Only four complaints had been received from mental patients alleging sexual abuse. Upon investigation, however, it was found that those allegations had no substantive basis.
The age of criminal liability was 17 in Poland. In some special cases – such as for cases of homicide, gang rape, assault, or terrorist activities – the age was reduced to 15, but even then additional elements had to be met, including an evaluation of the circumstances and the mental maturity of the individual. Even if the court decided on isolation measures, those juveniles were not placed in correctional facilities, but in special rehabilitative centres. In any case, the delegation said a new Code of Juvenile Law was being drawn up.
Questions by Committee Experts
CLAUDIO GROSSMAN, the Committee Expert serving as Rapporteur for the report of Poland, thanked the delegation for its replies. He said that the issues that surfaced time and again in all the countries the Committee examined, as for Poland, were with regard to the treatment of immigrants and aliens; the treatment of vulnerable groups, such as those who spoke other languages; and the treatment of "politically unpopular clients" – such as terrorists and criminals.
On the tolerated stay regime, Mr. Grossman thanked the delegation for the information that such aliens had the permission to work and had social rights and benefits. He wondered, however, what was meant by the "right to health insurance". Did that mean that aliens under the tolerated stay regime were provided with health insurance, or that they were entitled to buy their own health insurance?
Mr. Grossman also welcomed the various measures that had been introduced with regard to preventing torture in the police force, in particular the training programmes to raise awareness and the whistle blower programme.
Mr. Grossman realized that there was a draft law in Poland to change the rules regarding legal aid, however, he would appreciate confirmation of information received whereby, under current provisions, access to a lawyer was mandatory (and legal assistance would be supplied) if the crime alleged bore a minimum sentence of over three years, but there was no mandatory legal assistance provided for a crime that bore a lower sentence.
With regard to juveniles, was it true that it was possible that a juvenile could sign a document in the context of an investigation without benefit of a lawyer's advice, Mr. Grossman asked?
Regarding anti-terrorism and human rights, Mr. Grossman took note of the statement made to the Committee that no secret detention centres existed now or in the past in Poland and that no extraordinary renditions had taken place.
LUIS GALLEGOS CHIRIBOGA, the Committee Expert serving as Co-Rapporteur for the report of Poland, thanked the delegation for its very well done presentation. He had been surprised, howver, that no Polish non-governmental organizations had shown up to meet with the Committee in the context of its consideration of the report. The process of change going on in Poland required civil society to be very active, not only to observe, but also to contribute to the evaluation of law.
Mr. Gallegos was concerned that in remodelling prisons to address overcrowding, Poland might be eliminating necessary space for recreation and other needs of prisoners.
One of the major concerns of the Committee was the issue of migrants and refugees. The issue of return of migrants and refugees would not go away. Mr. Gallegos said Europe would do well not to treat that as not just as a social problem – internal and external – but as a problem of international relations.
Other Experts then asked questions and asked for further information on a number of topics, including guarantees that a contemplated system for expedited trials sufficiently guaranteed the principle of presumption of innocence; the high number of cases of abuse by officials involving firearms; whether the report on the secret prisons undertaken by the Parliament, given that it had found no such prisons existed, would be publicly released; whether Polish forces serving in armed conflicts – in Afghanistan and Iraq, for example – had been prosecuted for crimes of torture; statistics on investigations and prosecutions with regard to hate crimes; and whether sexual orientation was covered under hate crime laws in Poland and whether statistics on such crimes were kept.
Regarding Turkish citizens who had not been returned by Poland to Turkey because of information provided by Amnesty International, an Expert wondered if that indicated that Poland had not sought diplomatic assurances from Turkey in those cases, or whether it had disregarded them.
Response by Delegation
Responding to additional questions raised, the delegation of Poland said that, regarding benefits for aliens under tolerated stay in Poland, the right to social welfare benefits was automatically granted. Regarding health insurance, the same principle applied to aliens that applied to citizens: either the person received health insurance as part of the benefits of their employment, or they had to pay health insurance premiums. Cost-free health care was provided in Poland to all persons under 18 years of age, and to pregnant women and nursing mothers.
In terms of detentions of juveniles, after an initial period of 24 hours a detainee had to appear before a judge to rule on whether an extension of the detention was merited. As far as a juvenile was concerned, that decision had to be taken by the Family Court. Therefore no juveniles were detained in a police station for over 24 hours, the delegation concluded. A statement made by a juvenile was only taken in the presence of a lawyer or his or her parent or guardian.
Regarding legal assistance, the delegation said that mandatory assistance was based on health or financial status of the suspect. The court then appointed a lawyer ex officio to assist the client.
No diplomatic assurances had been sought in the case of the Turkish citizens that had not been returned to Turkey. In Poland, diplomatic assurances were only sought in cases where the possibility existed that the person returned would be subject to the death penalty. Then Poland might seek an assurance that, even if they were sentenced to the death penalty, the death penalty would not be carried out, the delegation said.
Statistics on hate crimes involving racial discrimination could be included in Poland's next report. As far as hate crimes involving sexual preferences were concerned, Poland had no legislation specifically criminalizing hate crimes on that basis and therefore had no statistics.
_________
For use of the information media; not an official record
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