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17 November 2000
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CAT
25th session
17 Novemer 2000
Afternoon
Australian Delegation Responds to Questions
on Second Periodic Report
The Committee against Torture offered conclusions and recommendations this afternoon on a second periodic report of Armenia, saying, among other things, that persons deprived of liberty should be effectively guaranteed immediate access to lawyers, members of their families, and physicians of their choice; and that the Government should establish an effective and independent monitoring system for all places of detention.
The Committee also recommended that the Armenian Government take steps to ensure that the penal responsibility of judges conformed to relevant international instruments, notably those on the independence of the judiciary.
And it said the Government should undertake without delay impartial inquiries into allegations of "hazing" in the army and pursue legal action in necessary cases.
The panel of 10 independent Experts welcomed continuing efforts by Armenia to establish a framework of protection for fundamental human rights, including those related to torture prevention; lauded the country's current moratorium on capital punishment and the absence of capital punishment in Armenia's draft Penal Code; approved of human rights training programmes carried out for State officials; and said it was impressed with the cooperation being developed between Armenian public officials and non-governmental organizations (NGOs).
The Armenian report was presented Tuesday, when a six-member Government delegation took note of a series of questions from the Committee. The delegation responded to the questions Wednesday afternoon.
Armenia, as one of the 123 States parties to the Convention against Torture, is required to submit periodic reports to the Committee.
The Committee also heard responses this afternoon to a series of questions asked in relation to a second periodic report of Australia. A six-member Government delegation presented the report on Thursday.
The delegation, led by Les Luck, Permanent Representative of Australia to the United Nations Office at Geneva, and Bill Campbell, First Assistant Secretary of the Office of International Law of the Australian Attorney-General's Department, said, among other things, that numerous steps had been taken to redress the disadvantaged status of many indigenous residents which had led to high incarceration rates among them; that indigenous persons were employed as prison and police officers throughout the country and in several jurisdictions were actively recruited for such jobs; and that asylum policies were applied in a way that complied with the standards of the Convention against Torture.
Conclusions and recommendations on the Australian report will be issued at the Committee's afternoon meeting on Tuesday, 21 November.
The Committee will reconvene at 10 a.m. on Monday, 20 November, to begin review of a second periodic report of Cameroon.
Conclusions and recommendations on second periodic report of Armenia
The Committee remarked that the report was not drafted in complete compliance with the guidelines for such reports, but that it was satisfied with the document and with the useful dialogue held with the Government delegation.
The Committee welcomed continuing efforts by Armenia to establish a framework of protection for fundamental human rights, including efforts to prevent torture; lauded the country's moratorium on capital punishment now in effect and the absence of capital punishment in the country's draft Penal Code; approved of a training programme in human rights for State officials; and expressed satisfaction with the cooperation being developed between public officials and non-governmental organizations (NGOs).
Among factors impeding the application of the Convention, the Committee noted problems of economic "transition" being experienced by Armenia.
Among the Committee's recommendations were
-- that Armenia adopt a domestic legal definition of torture conforming strictly with article 1 of the Convention;
-- that persons deprived of liberty be effectively guaranteed immediate access to a lawyer, members of their families, and physicians of their choice;
-- that the Government establish an effective and independent monitoring system of all places of detention;
-- that the Government undertake without delay impartial inquiries into allegations of "hazing" in the army and pursue legal action in necessary cases;
-- that the Government take steps to ensure that penal responsibility of judges conformed to relevant international instruments, notably those on the independence of the judiciary;
-- that the Government continue educational activities in human rights and the prevention of torture for relevant public officials, including police and prison personnel;
-- that the State party adopt as quickly as possible its draft Penal Code;
-- that replies be provided the Committee to questions raised during Armenia's initial report, particularly regarding allegations of maltreatment which had been brought to the Government's attention and which should be the subject of immediate investigation;
-- and that statistics disaggregated by sex and geographic region be included in the next Armenian report to the Committee.
Discussion of second periodic report of Australia
The Australian delegation said, among other things, that Australia regretted the delay in submitting its report; that the delay had resulted from the necessity of gathering information from a wide variety of sources and that preparation of the report had coincided with preparation of reports for other United Nations human-rights treaty bodies -- this was the fourth report presented by Australia to a treaty body since March. Perhaps it might be possible for countries to present shorter, more well-focused reports to such Committees in future; such a streamlined approach might be considered in efforts to reform the human rights treaty-body system. It also might be useful if greater advance notice could be given on Committee questions related to country reports, as, for example, it had been an enormous task to try to gather information overnight from several jurisdictions in Australia to address the 46 detailed questions the Committee had asked on Thursday.
The Committee would be provided with updated written materials on developments between 1997 and today, the delegation said; these would include information on implementation of the recommendations from the Royal Commission into Aboriginal Deaths in Custody and other State initiatives to reduce aboriginal deaths in custody; implementation of the National Mental Health Strategy; initiatives related to the treatment of children deprived of their liberty; initiatives related to police officer training and conduct; and initiatives related to conditions in Australian prisons and prison officer training.
Several jurisdictions had created specific legislative schemes for investigating complaints about police, the delegation said; nearly every jurisdiction had updated police training since June 1997 in an effort to improve the conduct of officers and the treatment of arrested persons.
Autopsies were carried out by independent medical examiners after all deaths in custody, although on occasion autopsies could be waived on request of the deceased's family, the delegation said. Some jurisdictions also required institutional investigations of any death in custody. In addition, several jurisdictions had undertaken training of prison officials to recognize suicidal inmates and to prevent suicide attempts, and some jurisdictions had established suicide-watch programmes.
The delegation said the Australian Government felt that Australian law and administration gave full effect to the Convention throughout the country, although obviously it would be easier if laws at the State and Territory level were cast in exactly the same terms. There was always more to be done, and laws were in a constant state of review and improvement; a Model Criminal Code -- a model State and Territory law -- had been designed to be implemented progressively by each jurisdiction and had provisions dealing with "offences against the person" and an offence "of intentionally causing serious harm" which could be seen to apply to situations of torture. A report on the Model Code suggested that any crime that amounted to torture should have an additional penalty of up to five years over and above the penalty applied for such an assault; both Victoria and Tasmania had enacted that suggestion into law. The only State that currently criminalized torture was Queensland. If there was concern that State or Territorial laws breached the standards of the Convention, it was expected that the matter could be discussed and resolved to everyone's satisfaction; a last resort, very seldom used, could be enforcement of overriding Federal legislation.
There was no torture resulting from any treatment of indigenous persons in Australia, although the Government was strongly committed to addressing the unacceptable level of disadvantage suffered by many indigenous people, the delegation said; the Government had spend a record 2.3 billion Australian dollars on indigenous-specific programmes for the years 2000-2001.
Australia had chosen to meet the non-refoulement obligation of the Convention against Torture through a mechanism based on an understanding that the vast majority of persons potentially subject to refoulement where they might be subject to torture would be identified as refugees and given refugee status; if, after going through that procedure first, they were not assessed to be refugees under the Refugee Convention, a second mechanism came into play, based on Ministerial public-interest intervention powers. Trained officers of the Department of Immigration and Multicultural Affairs studied each case, and those cases deemed well-founded were considered by the Minister personally according to publicly available guidelines. The Committee would be provided with copies of the guidelines. A study of refoulement procedures as they applied to women had been carried out, and it had found that women were treated appropriately by the system. Among other things, a claim of possible female genital mutilation would be a relevant factor in consideration of a particular application for asylum.
There was no clear statistical evidence that mandatory sentencing laws in effect in the Northern Territory and Western Australia were discriminatory in their impact on indigenous people, the delegation said; the laws were general in application and did not apply differentially on the basis of race or any other such criteria. Statistics showed that incarceration rates, and particularly indigenous incarceration rates, fluctuated significantly over time. Western Australia planned a study on the long-term effects of mandatory sentencing. The Australian Government was concerned about the high incidence of contact by indigenous people with the criminal justice system and had responded with a range of programmes designed to overcome the underlying social disadvantage that led to legal offenses by indigenous people. Other steps had been taken to ensure that mandatory sentencing laws did not have unfair impacts on either young people or indigenous people.
Under common law which applied in most States and Territories, a judge had discretion to exclude evidence improperly obtained, including evidence obtained by torture, the delegation said; the High Court had confirmed this principle of "downstream inadmissibility". In exercising this discretion, the judge was required to weigh competing public interests in convicting those who committed offenses, in protecting individuals from unlawful or unfair treatment, and in deterring unlawful conduct by police. In some jurisdictions, this balancing of interests had been codified with the presumption that such evidence would not be admitted "unless the desirability of admitting the evidence outweighs the undesirability of admitted evidence that has been obtained in that way".
Police interviews were audio taped or videotaped in most circumstances, the delegation said.
Police officers had been convicted of assault in various cases since 1997, the delegation said; statistics had been provided overnight by South Australia and New South Wales; two convictions had occurred in South Australia, one of them involving assault on a family member; in New South Wales 17 officers through June 2000 had been removed from duty following assaults, while another 69 had resigned while their suitability to remain in the police service was reviewed; in addition, 130 officers had been issued "performance warning notices", although it was not clear how many such warnings were issued in relation to assaults.
In all jurisdictions, child prisoners were segregated from adults, the delegation said, although there were rare occasions where children over 16 could be transferred or directed by a court to an adult prison in Victoria, Western Australia, and South Australia. In most jurisdictions the age of criminal responsibility was 10, and children between the ages of 10 and 14 could only be held criminally responsible if they knew their conduct was wrong. Custodial sentences could be imposed on juveniles, but were served in separate juvenile-detention centres.
There were no disaggregated statistics on the basis of gender, age or ethnicity in relation to sexual violence in prisons, the delegation said, but prisoners were encouraged to report all forms of such violence and investigations were undertaken in accordance with prison regulations.
Prison officers in a number of jurisdictions were trained in National Competency Standards which were based on the UN Standard Minimum Rules for the Treatment of Prisoners, the delegation said. Police, under relevant laws and rules of conduct, received training on the standards of the Convention. Several jurisdictions required that applicants for jobs as prison officers undergo psychological or attitudinal testing; and two jurisdictions investigated the criminal histories of applicants and carried out security checks. Indigenous Australians were actively encouraged to seek jobs as police officers and prison guards in several jurisdictions; Western Australia had recently recruited 17 indigenous prison officers and South Australia employed 35 aboriginal people in various capacities, including as liaison officers, prison officers, trainee prison officers, and in social work. Police forces in general had policies or practices designed to ensure that their personnel reflected the multicultural nature of Australian society; and all jurisdictions for which details were available indicated that their police forces included indigenous people.
Mandatory detention of illegal immigrants did not mean asylum seekers were detained per se, but such persons were detained if they arrived without valid documentation or with fraudulent or improperly obtained documents, the delegation said; some unauthorized arrivals subsequently applied for asylum. The duration of detention varied according to the complexity of the individual case, although steps had been taken to speed up the process; detention conditions had been investigated and termed adequate; and detainees had access to numerous complaints mechanisms. The Government held unauthorized arrivals in centres outside metropolitan areas for several reasons, among them the availability of commonwealth sites that could be appropriately developed. Children in immigration detention were detained only as a last resort and for the shortest possible period, and Government obligations to meet the needs of such children were taken extremely seriously; educational, health and welfare services were provided. All detention staff were trained to recognize symptoms of torture and trauma, and to refer victims for medical attention.
* *** *
25th session
17 Novemer 2000
Afternoon
Australian Delegation Responds to Questions
on Second Periodic Report
The Committee against Torture offered conclusions and recommendations this afternoon on a second periodic report of Armenia, saying, among other things, that persons deprived of liberty should be effectively guaranteed immediate access to lawyers, members of their families, and physicians of their choice; and that the Government should establish an effective and independent monitoring system for all places of detention.
The Committee also recommended that the Armenian Government take steps to ensure that the penal responsibility of judges conformed to relevant international instruments, notably those on the independence of the judiciary.
And it said the Government should undertake without delay impartial inquiries into allegations of "hazing" in the army and pursue legal action in necessary cases.
The panel of 10 independent Experts welcomed continuing efforts by Armenia to establish a framework of protection for fundamental human rights, including those related to torture prevention; lauded the country's current moratorium on capital punishment and the absence of capital punishment in Armenia's draft Penal Code; approved of human rights training programmes carried out for State officials; and said it was impressed with the cooperation being developed between Armenian public officials and non-governmental organizations (NGOs).
The Armenian report was presented Tuesday, when a six-member Government delegation took note of a series of questions from the Committee. The delegation responded to the questions Wednesday afternoon.
Armenia, as one of the 123 States parties to the Convention against Torture, is required to submit periodic reports to the Committee.
The Committee also heard responses this afternoon to a series of questions asked in relation to a second periodic report of Australia. A six-member Government delegation presented the report on Thursday.
The delegation, led by Les Luck, Permanent Representative of Australia to the United Nations Office at Geneva, and Bill Campbell, First Assistant Secretary of the Office of International Law of the Australian Attorney-General's Department, said, among other things, that numerous steps had been taken to redress the disadvantaged status of many indigenous residents which had led to high incarceration rates among them; that indigenous persons were employed as prison and police officers throughout the country and in several jurisdictions were actively recruited for such jobs; and that asylum policies were applied in a way that complied with the standards of the Convention against Torture.
Conclusions and recommendations on the Australian report will be issued at the Committee's afternoon meeting on Tuesday, 21 November.
The Committee will reconvene at 10 a.m. on Monday, 20 November, to begin review of a second periodic report of Cameroon.
Conclusions and recommendations on second periodic report of Armenia
The Committee remarked that the report was not drafted in complete compliance with the guidelines for such reports, but that it was satisfied with the document and with the useful dialogue held with the Government delegation.
The Committee welcomed continuing efforts by Armenia to establish a framework of protection for fundamental human rights, including efforts to prevent torture; lauded the country's moratorium on capital punishment now in effect and the absence of capital punishment in the country's draft Penal Code; approved of a training programme in human rights for State officials; and expressed satisfaction with the cooperation being developed between public officials and non-governmental organizations (NGOs).
Among factors impeding the application of the Convention, the Committee noted problems of economic "transition" being experienced by Armenia.
Among the Committee's recommendations were
-- that Armenia adopt a domestic legal definition of torture conforming strictly with article 1 of the Convention;
-- that persons deprived of liberty be effectively guaranteed immediate access to a lawyer, members of their families, and physicians of their choice;
-- that the Government establish an effective and independent monitoring system of all places of detention;
-- that the Government undertake without delay impartial inquiries into allegations of "hazing" in the army and pursue legal action in necessary cases;
-- that the Government take steps to ensure that penal responsibility of judges conformed to relevant international instruments, notably those on the independence of the judiciary;
-- that the Government continue educational activities in human rights and the prevention of torture for relevant public officials, including police and prison personnel;
-- that the State party adopt as quickly as possible its draft Penal Code;
-- that replies be provided the Committee to questions raised during Armenia's initial report, particularly regarding allegations of maltreatment which had been brought to the Government's attention and which should be the subject of immediate investigation;
-- and that statistics disaggregated by sex and geographic region be included in the next Armenian report to the Committee.
Discussion of second periodic report of Australia
The Australian delegation said, among other things, that Australia regretted the delay in submitting its report; that the delay had resulted from the necessity of gathering information from a wide variety of sources and that preparation of the report had coincided with preparation of reports for other United Nations human-rights treaty bodies -- this was the fourth report presented by Australia to a treaty body since March. Perhaps it might be possible for countries to present shorter, more well-focused reports to such Committees in future; such a streamlined approach might be considered in efforts to reform the human rights treaty-body system. It also might be useful if greater advance notice could be given on Committee questions related to country reports, as, for example, it had been an enormous task to try to gather information overnight from several jurisdictions in Australia to address the 46 detailed questions the Committee had asked on Thursday.
The Committee would be provided with updated written materials on developments between 1997 and today, the delegation said; these would include information on implementation of the recommendations from the Royal Commission into Aboriginal Deaths in Custody and other State initiatives to reduce aboriginal deaths in custody; implementation of the National Mental Health Strategy; initiatives related to the treatment of children deprived of their liberty; initiatives related to police officer training and conduct; and initiatives related to conditions in Australian prisons and prison officer training.
Several jurisdictions had created specific legislative schemes for investigating complaints about police, the delegation said; nearly every jurisdiction had updated police training since June 1997 in an effort to improve the conduct of officers and the treatment of arrested persons.
Autopsies were carried out by independent medical examiners after all deaths in custody, although on occasion autopsies could be waived on request of the deceased's family, the delegation said. Some jurisdictions also required institutional investigations of any death in custody. In addition, several jurisdictions had undertaken training of prison officials to recognize suicidal inmates and to prevent suicide attempts, and some jurisdictions had established suicide-watch programmes.
The delegation said the Australian Government felt that Australian law and administration gave full effect to the Convention throughout the country, although obviously it would be easier if laws at the State and Territory level were cast in exactly the same terms. There was always more to be done, and laws were in a constant state of review and improvement; a Model Criminal Code -- a model State and Territory law -- had been designed to be implemented progressively by each jurisdiction and had provisions dealing with "offences against the person" and an offence "of intentionally causing serious harm" which could be seen to apply to situations of torture. A report on the Model Code suggested that any crime that amounted to torture should have an additional penalty of up to five years over and above the penalty applied for such an assault; both Victoria and Tasmania had enacted that suggestion into law. The only State that currently criminalized torture was Queensland. If there was concern that State or Territorial laws breached the standards of the Convention, it was expected that the matter could be discussed and resolved to everyone's satisfaction; a last resort, very seldom used, could be enforcement of overriding Federal legislation.
There was no torture resulting from any treatment of indigenous persons in Australia, although the Government was strongly committed to addressing the unacceptable level of disadvantage suffered by many indigenous people, the delegation said; the Government had spend a record 2.3 billion Australian dollars on indigenous-specific programmes for the years 2000-2001.
Australia had chosen to meet the non-refoulement obligation of the Convention against Torture through a mechanism based on an understanding that the vast majority of persons potentially subject to refoulement where they might be subject to torture would be identified as refugees and given refugee status; if, after going through that procedure first, they were not assessed to be refugees under the Refugee Convention, a second mechanism came into play, based on Ministerial public-interest intervention powers. Trained officers of the Department of Immigration and Multicultural Affairs studied each case, and those cases deemed well-founded were considered by the Minister personally according to publicly available guidelines. The Committee would be provided with copies of the guidelines. A study of refoulement procedures as they applied to women had been carried out, and it had found that women were treated appropriately by the system. Among other things, a claim of possible female genital mutilation would be a relevant factor in consideration of a particular application for asylum.
There was no clear statistical evidence that mandatory sentencing laws in effect in the Northern Territory and Western Australia were discriminatory in their impact on indigenous people, the delegation said; the laws were general in application and did not apply differentially on the basis of race or any other such criteria. Statistics showed that incarceration rates, and particularly indigenous incarceration rates, fluctuated significantly over time. Western Australia planned a study on the long-term effects of mandatory sentencing. The Australian Government was concerned about the high incidence of contact by indigenous people with the criminal justice system and had responded with a range of programmes designed to overcome the underlying social disadvantage that led to legal offenses by indigenous people. Other steps had been taken to ensure that mandatory sentencing laws did not have unfair impacts on either young people or indigenous people.
Under common law which applied in most States and Territories, a judge had discretion to exclude evidence improperly obtained, including evidence obtained by torture, the delegation said; the High Court had confirmed this principle of "downstream inadmissibility". In exercising this discretion, the judge was required to weigh competing public interests in convicting those who committed offenses, in protecting individuals from unlawful or unfair treatment, and in deterring unlawful conduct by police. In some jurisdictions, this balancing of interests had been codified with the presumption that such evidence would not be admitted "unless the desirability of admitting the evidence outweighs the undesirability of admitted evidence that has been obtained in that way".
Police interviews were audio taped or videotaped in most circumstances, the delegation said.
Police officers had been convicted of assault in various cases since 1997, the delegation said; statistics had been provided overnight by South Australia and New South Wales; two convictions had occurred in South Australia, one of them involving assault on a family member; in New South Wales 17 officers through June 2000 had been removed from duty following assaults, while another 69 had resigned while their suitability to remain in the police service was reviewed; in addition, 130 officers had been issued "performance warning notices", although it was not clear how many such warnings were issued in relation to assaults.
In all jurisdictions, child prisoners were segregated from adults, the delegation said, although there were rare occasions where children over 16 could be transferred or directed by a court to an adult prison in Victoria, Western Australia, and South Australia. In most jurisdictions the age of criminal responsibility was 10, and children between the ages of 10 and 14 could only be held criminally responsible if they knew their conduct was wrong. Custodial sentences could be imposed on juveniles, but were served in separate juvenile-detention centres.
There were no disaggregated statistics on the basis of gender, age or ethnicity in relation to sexual violence in prisons, the delegation said, but prisoners were encouraged to report all forms of such violence and investigations were undertaken in accordance with prison regulations.
Prison officers in a number of jurisdictions were trained in National Competency Standards which were based on the UN Standard Minimum Rules for the Treatment of Prisoners, the delegation said. Police, under relevant laws and rules of conduct, received training on the standards of the Convention. Several jurisdictions required that applicants for jobs as prison officers undergo psychological or attitudinal testing; and two jurisdictions investigated the criminal histories of applicants and carried out security checks. Indigenous Australians were actively encouraged to seek jobs as police officers and prison guards in several jurisdictions; Western Australia had recently recruited 17 indigenous prison officers and South Australia employed 35 aboriginal people in various capacities, including as liaison officers, prison officers, trainee prison officers, and in social work. Police forces in general had policies or practices designed to ensure that their personnel reflected the multicultural nature of Australian society; and all jurisdictions for which details were available indicated that their police forces included indigenous people.
Mandatory detention of illegal immigrants did not mean asylum seekers were detained per se, but such persons were detained if they arrived without valid documentation or with fraudulent or improperly obtained documents, the delegation said; some unauthorized arrivals subsequently applied for asylum. The duration of detention varied according to the complexity of the individual case, although steps had been taken to speed up the process; detention conditions had been investigated and termed adequate; and detainees had access to numerous complaints mechanisms. The Government held unauthorized arrivals in centres outside metropolitan areas for several reasons, among them the availability of commonwealth sites that could be appropriately developed. Children in immigration detention were detained only as a last resort and for the shortest possible period, and Government obligations to meet the needs of such children were taken extremely seriously; educational, health and welfare services were provided. All detention staff were trained to recognize symptoms of torture and trauma, and to refer victims for medical attention.
* *** *