Committee against Torture hears response of Kuwait

AFTERNOON

12 May 2011

The Committee against Torture this afternoon heard the response of Kuwait to questions raised by Committee Experts on the second 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 Committee members on Wednesday, 11 May, the delegation, which was led by Dharar Razzooqi, Permanent Representative of Kuwait to the United Nations Office at Geneva, said that because Kuwaiti nationality brought many privileges including housing, education, health care, zero taxation and employment, illegal residence in the country had a long history. While the Government worked to resolve the illegal residency problem it would continue to alleviate the humanitarian needs of illegal persons by issuing registration cards and creating a special fund to provide for health care and education. The Government’s commitment to helping refugees was evidenced by the Kuwait Fund and the financial support it provided to the United Nations Refugee Agency. Mr. Razzooqi spoke of the possibility of Kuwait withdrawing the reservation on Article 20, adding that this could occur once the legislative obstacles were resolved. He said providing for a definition of torture in the penal code was also an important issue for the Government.

The delegation explained the regulations governing trial and interrogation procedures, including that the use of force to extract information was forbidden, that guards were taught to carry out interrogations to protect the accused, and the role of supervisory bodies to follow interrogations to ensure compliance. The Committee for the Review of Legislation had prepared a bill of law to amend the criminal procedure under Article 60 so that there would be no circumstances when a detainee could be held for a period beyond 48 hours. From 2001 to 2011 there were 623 trials involving torture, maltreatment, the depravation of liberty or corporal punishment and of these, defendants in 242 cases were acquitted, defendants in 258 cases were sentenced and the remaining cases were unresolved. Victims of torture were referred to the department of forensic medicine where the victim was examined and a forensic report was prepared. Kuwait was currently establishing a shelter for trafficking victims and for torture victims.

The Committee Expert serving as Rapporteur for the report of Kuwait, Alessio Bruni, said there were two positive developments in this dialogue, the announcement by the Ambassador that Kuwait would withdraw the reservation to Article 20 and the commitment to make torture a separate offense and definition in domestic law. Mr. Bruni asked if there were any examples of cases of persons not deported because they were in danger of being tortured in their country of origin and why was Kuwait not a State party to the Refugee Convention? The Rapporteur encouraged the delegation to examine the Istanbul Protocol to learn how to carry out training on the absolute prohibition of torture.

Other Committee Experts raised concerns about the availability of shelters for women exposed to domestic violence. They also asked if there was an intention to make domestic violence forbidden by law, what actions were taken to reduce hate crimes and crimes against homosexuals, and whether sexual abuse in prison was monitored. Experts were impressed by the spirit of cooperation showed by the delegation.

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 in public at 10 a.m. on Monday, 16 May, it will start its consideration of the initial report of Ghana (CAT/C/GGA/1).

Response of Kuwait

DHARAR RAZZOOQI, Permanent Representative of Kuwait to the United Nations Office at Geneva, said the delay in the presentation of the Kuwaiti report was due to the instability in the region. Illegal residence in Kuwait had a long history and the Government had tried to address it but the problem increased after the invasion of Iraq. Kuwait had a population of 1 million people with 192 nationalities in the country. Kuwait was a welfare State that catered to its own people - education and health care was free. Kuwait had no taxation and the Constitution obliged persons to work in the civil service after graduation. Housing was guaranteed by the Government; at the moment of graduation the Government provided land and a loan in excess of $ 200,000 for building a home. Therefore acquiring Kuwaiti nationality brought many privileges. While resolving the illegal residency problem, the Government continued to alleviate the humanitarian needs of this population by issuing registration cards and it created a special fund to provide for health and education. The Government was committed to helping the international community through the Kuwaiti Fund, and had given millions to the United Nations Refugee Agency, which showed the Government’s commitment to solving problems.

Mr. Razzooqi said that after the invasion of Kuwait there was great confusion in the country. If a contracting party of the Geneva Convention had not abided by the convention then what was the point of the convention? He stressed that international humanitarian law needed a protocol to enforce the rights of countries who were a contracting party of the Geneva Convention. International humanitarian law had no mechanisms of enforcement and Mr. Razzooqi said Kuwait would put forth a proposal to close this gap in humanitarian law. A representative from Chile in the Human Rights Council had raised the issue of the missing 62 persons in Kuwait but no information was ascertained on this. Capital punishment was a part of the Kuwaiti religion and law. However, the Government had instituted numerous procedures and safeguards before reaching that level of punishment. For the past four years, capital punishment has not been used. Mr. Razzooqi announced that he had discussed with the Government the possibility of withdrawing the reservation on Article 20 and that this could occur once the legislative obstacles were resolved. The definition of torture was an important issue for the Government and he said that according to his understanding international law always prevailed over national law.

Other members of the delegation, responding to the questions that were raised, said the Constitution of Kuwait prohibited all forms of torture and other cruel, inhuman and degrading treatment or punishment. Kuwait was a party to the International Convent on Civil and Political Rights. Article 70 of the Constitution stated that after the Emir concluded treaty agreements by decree they were then transferred to Parliament for ratification and then would be integrated into national law. In the Kuwaiti legal system there was no provision that ran counter to the Convention against Torture and Kuwait respected Article 4 of the Convention that provided that each State party would include in its penal code elements of the Convention and this was done in many of Kuwait’s articles, including Articles 53, 54, 56, 57, 58 of the penal code which dealt with civil servants.

At the Ministry of Interior there were strict rules to regulate trial and interrogation procedures based on respecting the rights of the person to be questioned. It was forbidden to use strength to extract information. Guards were taught how to deal with detained persons, how to carry out interrogations to protect the accused. It was forbidden to use any violence that ran counter to human dignity. Supervisory bodies closely followed interrogations to ensure the police used their authority in the appropriate way. Concerning training for persons within the Minister of Interior, new employees were sent to specialized training centres to ensure that such personnel had full knowledge on human rights. Training workshops stressed the rights of prisoners, the prohibition of torture and the code of conduct of police officers. Persons responsible for training courses had a doctorate in law and an in-depth understanding of human rights law. In 2007 and 2008, a training course was organised on trial procedures with full respect for human rights and international agreements, and in 2009 there was a training workshop on human rights for civil servants. The Kuwaiti legal system included many provisions which were consistent with the Convention against Torture.

The international legal instruments that the Government had acceded to were as valid as national laws. The Government had agreed to accept the Convention against Torture in a comprehensive manner and even if the definition of the concept of torture was more global than that in the national law, the Government still abided by it. The Justice Ministry was currently examining criminalizing torture as provided for by the Convention. Regarding Article 2 of the Convention, Kuwait established a classification of the primacy of law irrespective of the circumstances in which Kuwait found itself. There was a need to have an all embracing constitution and Article 31 provided a prohibition of any extrajudicial arrests or damage to dignity. The Constitution enshrined the principle of democracy and regulated the separation of powers. Kuwait, from the political and administrative level, was committed to the principle of legitimacy.

Concerning legislation to shorten the pre-trial detention from a maximum of 4 days, the Committee for the Review of Legislation had prepared a bill of law to amend the criminal procedure under Article 60 so that there would be no circumstances when a detainee could be held for a period beyond 48 hours.
Within the penal law there was no precise term making mention of terrorism and so the legal guarantees were the same as for other types of criminal offenses. Kuwait sought to rehabilitate persons who had carried out acts of terrorism so as to reintegrate them into society. The guarantees provided by law were irrespective of the nature of the crime.

From 2001 to 2011 there were 623 trials involving torture, maltreatment, the depravation of liberty or corporal punishment; of these, defendants in 242 cases were acquitted, those in 258 cases were sentenced and the remaining cases were unresolved.

As the judicial system guaranteed to all citizens the possibility to file complaints to the court and receive compensation, there was no disaggregated evidence if there was an instance of compensation paid to victims of torture.

The Kuwaiti legal system was based on the principle of the separation of political powers, the executive and legislative branches were separate and judges make their decisions based only upon the law. The constitution showed clearly that the judge was totally independent and the course of justice must not encounter any obstacles. Article 133 regulated the legal system that provided for the independence of the judges.

Kuwait understood the concept of international protection for refugees. Kuwait had answered the humanitarian appeals from the United Nations. International bilateral agreements concluded between Kuwait and sister countries prohibited extraditing political refugees if they feared being tortured in their country of origin. The Government was willing to examine the Istanbul Protocol. There were no prisoners of war in Kuwait. The Vienna Convention and diplomatic agreements provided for consular and diplomatic protection to secure the rights of citizens in host countries. Foreign national prisoners have the right to contact their missions to arrange for visits. Human rights had been included in the school programme and curriculum. At secondary schools there was a programme on human rights and the prevention of torture.

There were 200 female guardians in prisons for women in charge of administrative and social tasks. There were 12 men in charge of security for the primary gate but they were not allowed inside the prison. Prison A applied to misdemeanors while Prison B applied to crimes. Each prison was headed by an independent director; both categories of prisons offered the same services to inmates. There were no restrictions on the right of inmates to meet with their lawyers in private on prison premises. When a prisoner entered a prison he must have access to a telephone to inform the family and then was brought to the prison doctor and a medical record was established. No prisoner could be put in prison without a judicial order or a written order of preventive detention by the Office of the Prosecutor. Every prisoner had the right to meet with the prison director to make a complaint. There were social workers who passed daily to each prison and there was an in-house hospital which was under the supervision of the Health Ministry. In cases of torture within the prison, the case was referred to investigative authorities outside the prison in the Office of the Prosecutor. Human rights non-governmental organizations visited prisons regularly to inspect the situation in the prisons and to meet with prisoners. Visits by the International Committee for the Red Cross to prisons could last two weeks and five or six members of the delegation conducted these visits which covered all parts of the prisons.

The delegation said that in line with Article 16 of the law on foreigners, the Minister of Interior could issue an order of deportation against any foreigner with a residency permit if the foreigner was issued with a judicial decision to be deported after the principal penalty was executed, if the foreigner had no income and if the Minister deemed it was either in the public interest, security or moral order. A deportation could be avoided if the accused person had no nationality, such as the Bedouin. In all cases, foreigners had the right to challenge or appeal the deportation order.

Article 42 of the Criminal Code stated that the law enforcement officer must record the statement of the accused and it should be put on record. The accused had the right to have counsel present at the time of interrogation and had the right to remain silent.

Victims of torture were referred to the department of forensic medicine where the victim was examined and a forensic report was prepared on the type of injuries which would be forwarded to the investigative department. The victim’s lawyer may challenge the report and the victim could be reexamined before a committee. The court may also refer the victim to an external body for examination. Any person subjected to torture may go to a hospital to request a report indicating injuries incurred. Kuwait was currently establishing a shelter for trafficking victims and for torture victims.

The Government protected children from exploitation and doctors were required to report on any child subjected to torture or cruelty at school, home or a health facility. If a child under ten was subjected to torture the child would be placed in a foster family until the situation was resolved. Children with disabilities were given special attention and there was a centre to assist parents to care for children with disabilities from an early age. Kuwait aimed at controlling the prevalence of disability and there was obligatory screening before marriage on hereditary disabilities.

There was no mention of the sponsorship system in the Kuwaiti legal system, only a contractual relationship between a worker and an employer. There was a difficulty in inspecting domestic workers in homes because inspectors could not enter homes without a judicial decision. At the International Labour Organization there was discussion about adopting an international instrument on domestic workers. Regarding the revocation of passports, this required the Justice Department to have one month to render a judgment for the worker to have their passport returned. A labourer could take an employer to court if their passport was revoked. Kuwait had acceded to the Protocol against Trafficking in Persons.

Follow-up Questions

ALESSIO BRUNI, the Committee Expert Serving as Rapporteur for the Report of Kuwait, said he saw two positive developments in this dialogue, the announcement of the Ambassador to withdraw the reservation to Article 20 and the commitment to make torture a separate offense and definition in domestic law. Were there any examples of cases of persons not deported because they were in danger of being tortured in their country of origin? Why was Kuwait not a party to the Refugee Convention? Perhaps more emphasis should be given on the absolute prohibition of torture in any matter of interrogation, arrest or any activity of law enforcement officials. Mr. Bruni encouraged the delegation to examine the Istanbul Protocol to learn how to carry out training on the absolute prohibition of torture. Mr. Bruni asked for the rate of occupancy in police stations and prisons.

Other Committee Experts raised concerns about shelters for women exposed to domestic violence in their homes and efforts to make domestic violence forbidden by law. What actions were taken to reduce hate crimes and to reduce discrimination against homosexuals. Could the delegation explain what the reference to fair indemnities meant, did it mean full reparations? Had the Government ratified any of the United Nations’ conventions on statelessness? Experts were impressed by the spirit of cooperation shown by the delegation. A Committee member raised issues regarding violence against domestic workers and what measures had been taken to protect domestic workers. Questions were raised on the number of complaints, and how many were acted upon. Was sexual abuse in prison monitored?

Mr. Razzooqi replied to comments by the Experts and said that there had been an intense debate in Kuwait about the withdrawal of reservations to Article 20, with the argument based on sovereignty but Kuwait decided there should be no debate when it came to human rights. Concerning extending an invitation to the Special Rapporteur on trafficking, Mr. Razzooqi said he would work to prepare this visit so it would be a successful visit.

XUEXIAN WANG, Vice-Chairperson of the Committee, said that the dialogue had deepened the Committee’s understanding of the implementation of the Convention in Kuwait.

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