Committee against Torture begins examination of Report of Mauritius

Committee against Torture
MORNING

19 May 2011

The Committee against Torture this morning began its consideration of the third periodic report submitted by Mauritius on the implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Introducing the report, Yatindra Nath Varma, Attorney General of Mauritius, noted that Mauritius was a party to all the major international human rights instruments and that the Government Programme of 2010 to 2105 would review the Constitution to strengthen democracy, promote nation building and further entrench the fundamental rights and freedoms of Mauritian citizens. Mr. Varma stressed the Government’s strong condemnation of the use of the island of Diego Garcia, part of the territory of Mauritius, as a transit point for rendition flights of persons to countries where they risked being subjected to torture or ill-treatment. The use of Diego Garcia for such purposes could amount to complicity in torture within the meaning of Article 4 of the Convention. Mauritius was also unlawfully denied the right to exercise its sovereignty over the Chagos Archipelago, which included Diego Garcia and Chagossians, as Mauritians, were unable to exercise their right of return to the Archipelago in accordance with international law. Mr. Varma said that the Human Rights Committee in 2008 recommended that Chagossians be granted their right of return along with compensation by the United Kingdom for the denial of this right over an extended period.

Mauritius was the first country to receive the visit of the Subcommittee on the Prevention of Torture in 2007 and many of the recommendations arising from this visit had been or were about to be implemented, Mr. Varma said. The Government, following the visit last week of the Special Rapporteur on the sale of children, child protection and child pornography, decided to ratify the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography.

Luis Gallegos Chiriboga, the Committee Expert serving as Rapporteur for the report of Mauritius, expressed concern that most of the measures mentioned in the report, submitted after an eight year delay, remained at the level of projects and urged for these laws to be adopted and applied so that the Committee could evaluate their results. The Rapporteur raised a number of issues regarding how detainees were informed of their right to legal assistance, the time delay between arrest and access to a lawyer, and what measures were taken to guarantee access to an independent doctor. The Rapporteur suggested that Mauritius make public the recommendations by the Subcommittee against Torture, which were preventive measures, and promised to study the issue of rendition flights.

Alessio Bruni, the Committee Expert serving as Co-Rapporteur for the report, said he was concerned about the lenient penalties for the crime of torture which could not exceed five years and asked if this penalty was applied in cases of an aggravated crime. The Co-Rapporteur suggested that the State party consider enacting a legal measure to guarantee that exceptional circumstances could not be invoked to justify an act of torture and asked the delegation to provide information on the most recent visits by the National Human Rights Commission to places of detention including findings and recommendations.

Other Committee Experts asked about prison overcrowding and what alternative sentencing measures were being considered, such as the suspension of prison sentences? Experts raised concerns on how the Mauritian authorities reconciled the denial of access to counsel for 36 hours contained in the Dangerous Drugs Act 2000 and the Prevention of Terrorism Act 2002 with the fundamental guarantee to be represented by a lawyer during interrogation. A Committee member recommended a legal prohibition against all forms of corporal punishment of children; others asked for more information on the minimum age of criminal responsibility and the reasons for the increase in juvenile delinquency.

The delegation from Mauritius included representatives from the Permanent Mission of Mauritius to the United Nations Office at Geneva, the Attorney General’s Office and Office of the Prime Minister.

The Committee will convene at 3 p.m. this afternoon to hear the response of Finland to questions raised on Wednesday, 18 May. The Committee will hear the response of Mauritius to the questions raised this morning on Friday, 20 May, starting at 3 p.m.

Report of Mauritius

According to the third periodic report of Mauritius (CAT/C/MUS/3), the Constitution of Mauritius guarantees the right to freedom from torture, inhuman or degrading punishment or other such treatment thus placing the enforcement of the provisions of the Convention on Torture, Inhuman or Degrading Treatment or Punishment into the ambit of the jurisdiction of the Supreme Court. The Constitution itself makes provision under section 17 for redress to be afforded by the Supreme Court to any individual whose rights under Chapter II have been, are being or are likely to be contravened. The inclusion of torture as an offence (section 78 of the Criminal Code caters for the offence of torture by public official) provides for the new possibility to additionally prosecute public officers guilty of having carried out such acts.

The Child Protection Act was amended in 2005 to make provision for cases of child trafficking, abandonment and abduction to be dealt with by officers of the Ministry responsible for child welfare and development The Combating of Trafficking in Persons Act was passed in 2009 to give effect to the United Nations Protocol to Prevent, Suppress and Punish Trafficking in persons; prevent and combat trafficking in persons; and protect and assist victims of trafficking. It provides for repatriation of victims of trafficking, and return of victims of trafficking to Mauritius, as well as compensation to victims of trafficking.

The Extradition Act provides that an offender shall not be surrendered to a foreign State where the offence of which the request for his surrender is one of a political character or where the Minister has reasonable grounds for believing that the request for surrender is being made for the purpose of prosecuting or punishing the offender on account of his race, caste, place of origin, nationality, political opinions, colour or creed or where the Minister is satisfied that it would be unjust, oppressive or too severe a punishment to surrender the offender. There has been no extradition, expulsion or “refoulement” of any person charged under anti-legislation.

Mauritian prisons are facing a serious problem of overcrowding. On average, 5.5 square metres are available for 3 detainees who are confined in the same cell. In dormitories, 3 to 4.2 square metres are provided to detainees whether they are convicted or on remand. The Government has a project of constructing a new high security prison at Melrose to accommodate 750 detainees. The Abolition of Death Penalty Act was passed in 1995. All death sentences imposed before that Act was passed were commuted to sentences of penal servitude for life.

Introduction of the Report

TATINDRA NATH VARMA, Attorney General of Mauritius, noted that Mauritius was a party to all the major international human rights instruments and that the Government had worked relentlessly to maintain and strengthen a human rights environment. In its Government Programme 2010-2105, the Constitution would be reviewed to strengthen democracy, promote nation building and further entrench the fundamental rights and freedoms of Mauritian citizens. Mauritius was one of the rare countries to have volunteered to submit a mid-term report under the Universal Periodic Review to the Human Rights Council and was equally under ongoing review by other United Nations treaty bodies and regional bodies such as the African Commission on Human and Peoples’ Rights. Since the Government presented its last report to this Committee in 1999, it had submitted reports to a number of treaty bodies, including the Human Rights Committee, the Committee on Economic, Social and Cultural Rights, the Committee on the Rights of the Child, the Committee on the Elimination of All Forms of Discrimination against Women, and the African Commission on Human and Peoples’ Rights.

Mr. Varma stated the Government’s strong condemnation of the use of the island of Diego Garcia, always a part of the territory of Mauritius, as a transit point for rendition flights of persons to countries where they risked being subjected to torture or ill-treatment. The use of Diego Garcia for such purposes could amount to complicity in torture within the meaning of Article 4 of the Convention. Mauritius was unlawfully denied the right to exercise its sovereignty over the Chagos Archipelago, including Diego Garcia. In February 2008, the Government urged the United Kingdom to refrain from acts which would violate the Convention. As Mauritians, Chagossians should be allowed to exercise their right of return to the Archipelago in accordance with international law and should be granted compensation by the United Kingdom for the denial of this right over an extended period. Mr. Varma urged the Committee to make a recommendation to that effect along the lines of the recommendation made by the Human Rights Committee in July 2008.

Mauritius was the first country to receive the visit of the Subcommittee on the Prevention of Torture and many of the recommendations arising from this visit in 2007 had been or were about to be implemented. The Government, following the visit last week of the Special Rapporteur on the sale of children, child protection and child pornography, decided to ratify the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography.

Draft legislation was being prepared to review the structure of the National Human Rights Commission with a view to enable it to accommodate the Human Rights Division, the Police Complaints Division and a third Division which would discharge the duties of the national preventive mechanism as provided for in the Optional Protocol to the Convention. The International Criminal Court Bill, which gave force of law to the Rome Statue, had already been introduced in the National Assembly and would soon be considered for debate. Consultations would be held on the draft Criminal Investigations, Proceedings and Evidence Bill which would guarantee the citizens’ constitutional rights to liberty, protection of property, freedom of movement and protection of the law. The Bill would make better provision of the procedures to be followed by police officers and other enforcement officers in the exercise of their power of stop and search, power of entry, search and seizure, power of arrest and with regard to detention of persons and the questioning and treatment of detainees. The Government intended to introduce a new Bail Act to allow the courts to impose curfew requirements on detainees and order them to wear electronic bracelets to reduce the number of persons in pre-trial detention.

Laws and measures were being prepared to minimize delay in hearing and disposing of court cases. Specialised divisions were being established within the Supreme Court and the number of judges on the Supreme Court had increased from 12 to 19 during the period 2008 to 2011. Courts were making more judicious use of technology with a view to reducing administrative backlogs and conciliation and mediation were introduced with respect to civil and commercial cases.

The Government had spared no effort to entrench a strong human rights culture in the public services. Some 8,143 police officers and 700 prison officers underwent training in human rights dispensed with the collaboration of the National Human Rights Commission. Divisional commanders and branch officers of the Police Service were urged to sensitize officers under their command on the importance of respecting human dignity and human rights values. Greater use was being made of DNA testing and forensic expertise in crime investigation in order to avoid relying solely on confessions.

Free copies of the Constitution were distributed in schools and colleges and a free on line database covering the laws of Mauritius, including the Constitution, was launched last week. In the near future, the Government would establish a programme whereby needy persons would receive free legal advice in decentralized Citizen Advice Bureaus across the island.

Concerning domestic violence, legislation was amended in 2007 to enhance the protection afforded to victims while providing that the Court may, in specified conditions, order the offender to follow counseling sessions. Assistance was provided to victims in the form of temporary shelters, psychological counseling and legal assistance. A Committee was set up compromising all stakeholders as well as non-governmental organizations to draft solutions to reduce and prevent the incidence of domestic violence. A victim friendly approach was adopted by the Police with regard to rape victims and a protocol of assistance to victims was elaborated along with sensitization campaigns conducted by the Police Family Protection Unit to children as from primary school level.

Questions by the Committee Experts

LUIS GALLEGOS CHIRIBOGA, the Committee Expert who Served as Rapporteur for the Report of Mauritius, said there had been an eight year delay in this third periodic report and raised concerns about whether detainees were informed of their right to legal assistance. He asked specifically what was the time that elapsed between arrest and the time that the detained person had access to a lawyer. In practice, what measures were taken to guarantee access to an independent doctor and how was confidentiality guaranteed? Had the State approved the draft Police Complaints Bill and what were the central elements of the Bill and what was the composition of the National Human Rights Commission and how did the State guarantee its financial independence?

The Rapporteur noted that no new legislation had been introduced in Mauritius with regard to deportation which meant that no legal protections existed for persons who would be normally subjected to extradition, expulsion and refoulement. Mr. Gallegos recommended that Mauritius make public the recommendations on the preventive measures suggested by the Subcommittee against Torture.

The Rapporteur expressed concern that most of the measures mentioned in the report of the State party remained at the level of projects. The Committee wanted these laws approved and applied so that it could evaluate their results. Concerning rendition flights, the Rapporteur would study this issue carefully and congratulated the Government for acceding to the Optional Protocol to the Convention on the Rights of the Child.

ALLESSIO BRUNI, the Committee Expert Serving as Co-Rapporteur for the Report of Mauritius, said he was concerned about the lenient penalties for the crime of torture which could not exceed five years and asked if this penalty was applied in cases of an aggravated crime. Could the delegation elaborate on the dismissal of the case in 2009 of prison officials charged with the offense of torture? Mr. Bruni suggested that the State party consider enacting a legal measure to guarantee that exceptional circumstances could not be invoked to justify an act of torture. Could the delegation indicate the most recent visits by the National Human Rights Commission to places of detention and what were the findings and recommendations of these visits?

The Co-Rapporteur requested the number of cases of extradition, expulsion and return that may have occurred after the consideration of the last report in 1999; specifically to which countries were those persons deported, whether diplomatic assurances were provided and whether post return monitoring arrangements were adopted.

What were the results and impact of police training programmes, and had complaints against police brutality decreased as a result? Would the Istanbul Protocol be included in future police training or for the training of forensic doctors and other medial personnel assigned to deal with prisoners in detention? Could the delegation provide the rate of occupancy in detention facilities?

A Committee member expressed concern at prison overcrowding and poor conditions and asked what alternative sentencing measures were being considered by the Government to reduce these issues. Did Mauritian legislation allow for the suspension of a prison sentence? The report mentioned that inmates were responsible for repair and construction of prisons; could the delegation provide more information on this? Concerning extradition, the Government’s refoulement law appeared to be applied differently than intended in the Convention and the Expert asked for detailed cases explaining how the law was applied.

A Committee member asked for information on different complaint mechanisms against torture, specifically how many were brought before the court in 2010 and what penalties were decided by the judiciary.

An Expert asked how the Mauritian authorities reconciled the denial of access to counsel for 36 hours contained in the Dangerous Drugs Act 2000 and the Prevention of Terrorism Act 2002 with the fundamental guarantee to be represented by a lawyer during interrogation.

A Committee member raised concern about both the rendition flights from Diego Garcia and that the Chagossians were unable to exercise their right of return to the Archipelago in accordance with international law.

An Expert raised concerns about the rights for gay people in the State party as there was a case of hospitalizing lesbian girls in 2005 and 2006; could the delegation provide information on the rights of people with a different sexual orientation.

A Committee member recommended that there should be a legal prohibition against all forms of corporal punishment of children in every area of society, not just in schools. As there was no mention of psychiatric care or legal safeguards for individuals in mental health institutions, could the delegation provide information on this?

An Expert asked a number of questions regarding minors including if there was a clear minimum age of criminal responsibility and to address the increase in juvenile delinquency which had not been treated in accordance with international protocols. There was a lack of clarity in the judicial system in relation to the judicial committee of the Privy Council which could decide on decisions of the Supreme Court.
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