Committee against Torture begins examination of report of Kuwait

MORNING

11 May 2011

The Committee against Torture this morning began its consideration of the second periodic report submitted by Kuwait on how that country implements the provisions of the Convention against Torture.

Introducing the report, Dharar A.R. Razzooqi, Permanent Representative of Kuwait to the United Nations Office at Geneva, noted that Kuwait’s legal system comprised numerous rules and articles which ensured its commitment to the Convention against Torture and that based on Kuwait’s clement Islamic Shariah, which provided protection for human dignity, as well as through respect and commitment to the Universal Declaration of Human Rights, the Kuwaiti Constitution stressed the importance of combating torture.

Kuwait had established mechanisms and bodies to safeguard human rights, including the High Committee for Human Rights, headed by the Minister of Justice, which was tasked with providing counsel and perspectives to decision makers, reviewing systems and laws, proposing amendments and providing training for the concrete awareness and promotion of human rights. Mr. Razzooqi said that during its Universal Periodic Review in 2008, Kuwait committed itself to setting up a national institution for the protection of human rights in line with the Paris Principles and that this institution would further consolidate human rights and freedoms in the country.

Serving as Rapporteur for the report of Kuwait, Committee member Alessio Bruni raised a number of issues concerning the definition of torture under the criminal law and requested that the delegation clarify the penalties provided by law in cases of torture, particularly when there were aggravating consequences. Questions were raised about the legal and administrative measures in place to give effect to Article 2 of the Convention which provided that no exceptional circumstances could be invoked as a justification of torture and there was a request for statistical information from the period 2005 to 2010 on asylum applications and if there were specific training courses on the absolute prohibition of torture for the police, security forces and prison officers.

The Rapporteur asked a number of questions regarding detainees including whether Kuwait had enacted measures or was considering enacting measures to reduce the maximum period of police custody without a written order to less than four days, were there rights by the arrested to a prompt hearing by a judge, to contact family members and to have access to a lawyer and a doctor from the moment of arrest and how many female guards or prison officers were in places of detention and what was the condition of female inmates? The Rapporteur also requested that the delegation clarify its position on its reservation to Article 20 on the competence of the Committee to conduct inquiries on alleged systematic practice of torture in a State party.

Other Committee members asked if corporal punishment was still allowed and what was the relevant law that prohibited this punishment in schools and would a new penal code comply with Islamic law? Many questions were asked about domestic foreign workers, including if workers were protected against deportation without judicial review when they filed complaints, were foreign nationals granted asylum, were foreign workers granted consular assistance, was there a time limit for foreign nationals to be kept in detention until a decision was made on their situation, and what measures had the Government taken against contract fraud concerning foreign national domestic workers.

The Kuwaiti delegation included representatives from the Permanent Mission of Kuwait to the United Nations Office at Geneva, the Ministry of Social Affairs and Labour, the Ministry of the Interior, the Ministry of Justice and the Ministry of Foreign Affairs.

Kuwait is among the 147 States parties to the Convention and as such it must present periodic reports to the Committee on how it is implementing the provisions of the Convention.

When the Committee reconvenes at 3 p.m. it will hear the replies of Slovenia to questions raised by the Committee on 9 May on how it implements the provisions of the Convention against Torture.

Report of Kuwait

According to the second periodic report of Kuwait (CAT/C/KWT/2), in Kuwait the extradition of offenders is subject to the texts and provisions of United Nations, regional and bilateral conventions, to which the State of Kuwait is party and, as a general rule, extradition shall solely occur in accordance with rules and procedures. The Kuwaiti Constitution and legislation ensure litigation rights for all inhabitants of Kuwait, including the right to challenge penal provisions and related auxiliary sentences, such as deportation. Kuwait adopts the principle of non-refoulement, that is, refrain from deporting or extraditing a person to his home country if the person provides evidence that he is likely to be in danger in that country. Article 46 of the Constitution of Kuwait prohibits the extradition of political asylum-seekers.

Though Kuwait is not a party to the United Nations Convention relating to the Status of Refugees, in 1996 Kuwait signed a cooperation and headquarters agreement with the United Nations High Commissioner for Refugees (UNHCR), which identified the functions of the UNHCR office in Kuwait. The office plays an important role in the protection and tracking of persons under UNHCR jurisdiction, and cooperates and consults with the Government to provide international protection to such persons, in accordance with UNHCR Statute and other resolutions adopted by the United Nations General Assembly.

The Kuwaiti Penal Code includes a number of provisions criminalizing various forms and manifestations of torture and the Convention against Torture, following its ratification in 1996, has formed part of domestic legislation and thus has become binding, under article 70 of the Kuwaiti Constitution.

The concerned authorities in Kuwait, such as the Ministry of Justice, develop training and coaching programmes with a view to enhancing the efficiency and expertise of law enforcement officers, primarily judges, prosecutors and legal scholars. A special role is played by the Kuwait Institute for Judicial and Legal Studies, which, in coordination with the Ministry of Justice, plans and organizes training courses and workshops for those concerned with human rights. The Ministry of Education has incorporated the Constitution and human rights in high school curricula, including a special course on torture entitled “the right to human dignity and the prohibition of torture”, which addresses human suffering as a result of the exercise by certain regimes of torture and abuse.

Introduction of the Report

DHARAR A.R. RAZZOOQI, Permanent Representative of Kuwait to the United Nations Office at Geneva, noted that Kuwait’s legal system comprised numerous rules and articles ensuring its commitment to acceding to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, under Law No. 1 of 1996. This was part of the national legal system and all authorities were compelled to abide by it. Based on the clement Islamic Shariah, which provided protection for human dignity, as well as through respect and commitment to the Universal Declaration of Human Rights, Kuwait’s constitution stressed in many of its articles the importance of combating torture, namely in Articles 31, 34 and 56.

Kuwait had gone beyond issuing legislation against torture and other cruel, inhuman or degrading treatment or punishment and was taking many measures to contribute to combating torture and abuse of authority. Competent authorities exercised the utmost care and caution and had set stringent requirements to ensure that the best candidates were recruited in the field of law enforcement. Candidates were trained to ensure respect and promotion of human rights and the Government had recently cooperated with the Office of the High Commissioner for Human Rights to draft a training programme for legal and police officers. The Kuwaiti Ministry of Interior established a special department to record public complaints responsible for following-up on grievances or abuse of authority filed against any officer working at the Ministry of Interior. Administrative guidelines were routinely issued to government offers urging them to serve the public well and pointing out any mistakes they could make.

Concerning prisoners and detained persons, Mr. Razzooqi said that there were rules which organised work in places of detention and arrest and Article 19 of the Prisons Law forbad detaining any person in prison without a written order from the competent authority. No person could be arrested for a period of time exceeding that stipulated by law and it was also forbidden to imprison a person in a dark cell and to segregate amongst inmates for any reason. The General Prosecutor was responsible for supervising prisons and other detention centres where penal orders were implemented. The State paid particular attention to tackling the effects of crimes and temporary shelters were established to care for victims of such crimes, providing legal, medical and psychological services.

The State of Kuwait established mechanisms and bodies to safeguard all human rights. The High Committee for Human Rights, headed by the Minister of Justice, was tasked with providing counsel and perspectives to decision makers concerning all work matters, including reviewing systems and laws with a view to proposing amendments. The Committee was responsible for enhancing the concrete awareness and promotion of human rights and providing training for special staff. The Committee comprised three technical committees; chief amongst them was the International Liaison Committee. The legislative authorities supervised the State’s bodies to ensure the full implementation of all legislation related to human rights. The committees concerned within the Kuwaiti National Assembly paid regular visits to detention centres and prisons to ascertain that the law was applied.

In 2008 during its Universal Periodic Review, Kuwait committed itself to setting up a national institution for the protection of human rights in line with the Paris Principles to consolidate human rights and freedoms. The State of Kuwait was aware there were still many obstacles and challenges ahead but was nonetheless committed, as an active member of the international community, to abide faithfully and genuinely by its responsibilities and would continue to assess its efforts in this respect and overcome any shortcomings.

Questions by Committee Experts

CLAUDIO GROSSMAN, Chairperson of the Committee against Torture, welcomed the systems used by Kuwait to select best candidates, cooperation with the Office of the High Commissioner for Human Rights on training, standards for detention centres that were established pursuant to the law, the role played by the justice committee and plans for a human rights institute in compliance with the Paris principles.

ALESSIO BRUNI, Committee Expert Serving as Rapporteur for the Report of Kuwait, said that it was regrettable that the second periodic report, which was due on 4 May 2001, was submitted in March 2010 delaying the dialogue between Kuwait and the Committee for almost nine years. Though the Convention was an integral part of the domestic legislation of Kuwait, there was no definition of torture under the criminal law. Did this mean that the judge, when applying the relevant criminal provisions concerning torture would take the definition of it contained in Article 1 of the Convention as the legal basis to identify the crime. Could the delegation clarify the penalties provided by law in cases of torture, particularly when there were aggravating consequences such as permanent disability or death of the victim?

As Kuwait was located in a region where armed conflicts recently occurred and the State Party was the victim of an invasion in 1990, what were the legal and administrative measures in place to give effect to Article 2 of the Convention which provided that no exceptional circumstances, whether a state or a war or a threat of war could be invoked as a justification of torture. Concerning Article 3, what was the legal basis for the competent authorities to refrain from deporting a person who would be at risk of being tortured in the country where he was supposed to be returned? To which administrative or judicial institution could a foreign national submit an appeal against an order of deportation?

The Committee had requested statistical information from the period 2005 to 2010 on asylum applications and the Rapporteur requested that this detailed information be provided to confirm Kuwait’s application of Article 3 of the Convention. The Rapporteur asked if there were specific training courses on the absolute prohibition of torture for the police, security forces and prison officers and if there had been an evaluation of the impact of these courses on a reduction in complaints for torture and ill-treatment.

The Rapporteur asked if Kuwait had enacted measures or was considering enacting measures to reduce the maximum period of police custody without a written order to less than four days and to eliminate the possibility of further extensions. Could the delegation clarify if the right of the arrested to a prompt hearing by a judge, the right to contact family members and the right to have access to a lawyer and a doctor from the moment of arrest were guaranteed without exception or were there exceptions? The Rapporteur asked about the number of female guards or prison officers in places of detention in Kuwait and what was the condition of female inmates, and was there a particular regime of detention and facilities available to them? The Rapporteur asked for the number of reported cases of torture in prison and the use of force by the police, if any, which was brought to court and prosecuted in the last five years. In connection with Article 13 of the Convention, the Committee requested information on the annual number of prisoner complaints received by the General Directorate for Control and Inspection at the Complaints Department of the Ministry of Interior, the current average length of the complaint procedure, how many public officials were found guilty and what sanctions or penalties were applied to them.

Concerning Article 16, the Committee would like to receive specific information on measures aimed at limiting restrictions and compulsive treatment applied to patients under compulsory mental health care to what was strictly necessary. At the last Universal Periodic Review concerning Kuwait in May 2010, the Government agreed to pass labour legislation covering domestic work to provide legal protection to domestic workers; what progress was made on this subject?

The Rapporteur requested the delegation to clarify its position on its reservation to Article 20 on the competence of the Committee to conduct inquiries on alleged systematic practice of torture in a State party. In addition, the report stated that Kuwait had not accepted the optional procedures under Articles 21 and 22 because they stood conditional upon Article 20, could the delegation elaborate on this subject?

ESSADIA BELMIR, the Committee Expert who served as Co-Rapporteur for the report of Kuwait, who was not present but submitted her questions through the Rapporteur, asked what was the criteria used by the State vis-à-vis its nationals, in particular concerning people with no nationality, those people born in Kuwait without a passport, called the Bedouin, who when they were detained could suffer abuse by public authorities. She was concerned about the ethnic and linguistic rights of minorities who suffered ill treatment from State institutions and how their children could suffer from lack of a nationality. The Co-Rapporteur was concerned with the sexual exploitation of migrant women because the passport of the foreign worker was taken and the person became dependent and this allowed for exploitation.

In further questions, a Committee Expert said that the establishment of an independent human rights body, as mentioned in the statement, would advance the cause of human rights in Kuwait. The Expert asked if a detainee would have the ability to apply to an independent body in all cases of torture. Was corporal punishment still allowed and what was the relevant law that prohibited this punishment in schools? Would a new penal code comply with Islamic law? The majority of domestic foreign workers were female and the Expert wanted to know how, in the cases of physical and sexual abuse, females were protected when they complained to avoid deportation without judicial review.

A Committee member asked the delegation to provide information on standards and protocols for detainees; were lawyers present and was the questioning recorded? The Expert asked about consular assistance provided to foreign nationals detained or arrested as this was a right recognised by the International Criminal Court. Were foreign nationals granted asylum and were there emergency asylum procedures? Had foreign prisoners of war detained in Kuwait received consular assistance? Regarding statelessness for minority groups such as the Bedouin, were there specific legal considerations for stateless persons?

An Expert asked if there was a time limit for foreign nationals who were detained to be kept in detention until a decision was made on their situation and what was the difference between category A and B prisoners, especially in terms of visits allowed. Could the delegation shed further light on the institutional guarantees for the independence of the judiciary and that judges would not be removed from their position.

A Committee member asked about what had been done in the area of compensation for victims of torture and was this related to the assessment and had these assessments been used in court decisions? As there was no law against corporal punishment against children in homes or schools, how was this prevented from occurring? How often was there involuntary hospitalisation in cases of psychiatric illness and were there complaints against these detentions? There appeared to be no law against trafficking and the Expert asked for information on how the Government would combat trafficking. What plans were there to legalise homosexuality and how could the Government stop abusive behaviour toward lesbian, gay and transgender individuals who were detained and abused by the police.

An Expert asked about the process of applying a law after it was ratified and what would happen when there was conflict between domestic legislation and international legislation? The Expert said there was urgency to achieve legislation to protect foreign national domestic workers and that the proposed draft prepared by Kuwait had not ensured full freedom for workers to terminate their work or contract.

A Committee member asked how many persons on remand had asked to meet with their lawyers in private and how many had received permission from the Office of the Prosecutor? Regarding females in detention, were any in detention for actions in violation against the Convention? Where were female prisoners detained, how many were there and were the guards all same sex guards? The Expert asked how often in the last two years of the reporting period had the Director of Prisons carried out prison inspections and how many complaints were received? The Expert said that the capacity to handle complaints was critical to the Convention. Was sexual abuse monitored in prison and were there statistics provided on sexual abuse? Were the punishments of flogging or stoning permitted in the Kuwaiti criminal code? Could the delegation inform the Committee if it would accept a visit by the Special Rapporteur on trafficking in human beings? The Expert asked the delegation to clarify what measures the Government had taken against contract fraud concerning foreign national domestic workers as Indonesia had banned their nationals from going to Kuwait because of such fraud.

CLAUDIO GROSSMAN, Chairperson of the Committee, asked if there were cases that had resulted from doctors who reported violence or ill-treatment. Would the delegation provide the Committee with the crimes that allowed for the application of the death penalty? The newly created committee to receive complaints had received over 1,600 complaints in 2009 and the Chairperson asked for the statistics on the action taken on these cases. Was there a case in Kuwait of compensation to an individual because of torture or ill-treatment?

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