Committee against Torture examines report of Bolivia

Committee against Torture

17 May 2013

The Committee against Torture today concluded its consideration of the second periodic report of Bolivia on how it implements the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Angelica Navarro Llanos, Permanent Representative of Bolivia to the United Nations Office at Geneva, said the reform in Bolivia had led to the approval of a new Constitution in 2009 that prohibited torture and cruel and degrading treatment, and a new system of restorative justice based on equity and equality had been put in place.  A preliminary draft bill on the mechanism to prevent torture was being discussed in the National Council for Social and Economic Policy, and the new draft code on children and adolescents was currently before the legislative assembly.  Bolivia was in the process of reforming its judicial system to transform it from the colonial model and ensure its independence, and the National Council against Trafficking in Persons had been established and was in the process of developing the national strategy and action plan to combat trafficking in persons.

Committee Experts stressed that the key question was how the right to life and freedom from violence and torture could be implemented on the ground for the people of Bolivia.  The establishment of the national preventive mechanism was of high priority and adequate resources must be provided to the Office of the Ombudsmen which would fulfil this function.  Overcrowding, which ran to over 800 per cent in some prisons, was an issue of great concern to the Committee, which inquired about measures to tackle it and to improve conditions in places of detention and deprivation of liberty.  The situation of violence against women was described as bordering femicide, but in the absence of the new legislation on the issue, the judicial system seemed reluctant to deal with the serious cases and this lack of justice might be one of the factors explaining the high rates of violence.

Responding to questions and comments raised by the Committee members yesterday, 16 May and today, the delegation said that Law N° 348 of March 2013 guaranteed a life free of violence for women and aimed to set up mechanisms and policies to protect, care for and provide reparations to women victims of violence and to prosecute and punish perpetrators of that violence, while other legislation criminalized femicide, domestic or family violence, sexual harassment and other forms of violence against women.  The strategic plan on penitentiary policies had been in place since 2006 and one of the measures against overcrowding was the Presidential pardon issued in December 2012 to 277 individuals.  The Ministry of Economy and Public Finances was authorized to pay out compensation to victims of political violence suffered during the dictatorship, while families of 297 victims of violence of the October 2003 events had received compensation.  The bill on the national preventive mechanism currently under review would ensure that the mechanism was applicable in all places of deprivation of liberty and would authorize the Office of the Ombudsmen to act as a mechanism for the prevention of torture and other cruel, inhuman or degrading treatment or punishment.

The delegation of Bolivia consisted of representatives from the Ministry of Indigenous Justice and the Permanent Mission of Bolivia to the United Nations Office at Geneva.

The Committee will meet in public at 10 a.m. on Tuesday, 21 May to start consideration of the second periodic report of Japan (CAT/C/JPN/2).

Report of Bolivia

The second periodic report of Bolivia can be read via the following link (CAT/C/BOL/2).

Presentation of the Report of Bolivia

ANGELICA NAVARRO LLANOS, Permanent Representative of Bolivia to the United Nations Office at Geneva, introducing the report, said torture in Bolivia historically had started with the colonial period and over the years had become mainstreamed in institutions in a hereditary fashion.  The civil society and social movement had been able to change this situation and achieve the reform, which had led to the approval in 2009 of a new Constitution that prohibited torture and cruel or degrading treatment or punishment; a new system of restorative justice based on equity and equality had been put in place.  A preliminary draft bill on the mechanism to prevent torture was being discussed in the National Council for Social and Economic Policy, and the new draft code on children and adolescents was currently before the legislative assembly.  The 2012 Law on Protection of Refugees confirmed the principle of non-refoulement, while other legislative achievements concerned violence against women, the protection of victims and witnesses, and trafficking in persons.  Everyone was entitled to legal and medical aid starting from the moment of detention and the penitentiary centres ensured good treatment, medical supervision and measures curbing violence.  The Director-General of the penitentiary system coordinated activities with the Office of the Ombudsmen, a national institution created according to the Paris Principles and in charge of visits of places of detention. 

For the very first time, there had been in 2011 a revision of the judicial system to transform it from the colonial model and ensure its independence.  The National Council against Trafficking in Persons had been established and was in the process of developing the national strategy and action plan to combat trafficking in persons.  A total of 488 victims of political violence or their families had received reparation.  Bolivia had ratified the Optional Protocol to the Convention against Torture in 2005 and hosted a visit of the Subcommittee for the Prevention of Torture in 2010, which commended the country for criminalizing torture and ill treatment and improving living conditions in places of detention.  The national programme to combat gender-based violence 2013-2015 aimed at creating new mechanisms for training of justice and police officers, while the Attorney General had a special training programme on constitutional rights and principles.  Members of the armed forces and the police who had committed, tolerated or covered up ill treatment had been removed from the service.  The national legislation had declared the inapplicability of the military justice system for human rights violations and impunity for human rights violations was not tolerated.

Questions from Committee Experts

FERNANDO MARINO MENENDEZ, Committee Expert and Rapporteur for the Report of Bolivia, took note of the ongoing process of changes in the Criminal Code which would establish criminal charges for acts of torture and expressed hope that the definition of torture therein would conform to the definition contained in the Convention.  The first few hours of detention, when a detainee was most vulnerable and defenceless, were the most critical in preventing torture; could the delegation clarify the process of detention and questioning, including the role of the public prosecutor and the registry of detainees?  Mr. Marino Menendez further inquired about forensic medicine and whether it was regulated as a profession and was it accountable to any public authorities, recourse that was available to detainees who suffered torture and ill treatment, and the boundaries between indigenous and traditional justice systems in cases of torture and how indigenous courts dealt with it.  Under the Convention against Torture, the principle of non-refoulement and non-return was absolute and applied even in cases of accused terrorists who could not be returned to their country of origin if there was a risk of torture.  Women in Bolivia were not a homogenous group and indigenous women were more vulnerable, but there was no information about the prevalence of violence against them and against school girls, including sexual harassment.  Sexual and reproductive rights were protected under the Constitution, while abortion was legal in cases of rape and danger to the life of the mother.  Some indigenous groups were in semi-servitude and even the State recognized that they were not sufficiently protected; was racial discrimination a crime in Bolivia?  The national preventive mechanism was not yet properly established; what was its present situation? 

NORA SVEAASS, Committee Expert and Rapporteur for the Report of Bolivia, said that the key question was how the right to life and freedom from violence and torture could be implemented on the ground for the people of Bolivia.  Ms. Sveaass commended Bolivia for the recent legislative achievements, including the abolition of the death penalty, and wondered about future steps in the development of its legislation.  The establishment of the national preventive mechanism was of high priority, and the role of the Ombudsmen Office as a national preventive mechanism without provision of adequate resources was an issue of concern.  Concerning dealing with crimes of the past and information about people who had disappeared and accountability, the Country Rapporteur noted the commitment of Bolivia during its 2010 Universal Periodic Review process to open the archives, develop coordination with the military and ensure accountability.  Combating impunity and establishing accountability was not only for past crimes, but also applied to more recent crimes, such as the killing of 67 people by the five generals; what steps could be taken to accelerate investigations and criminal proceedings in the relevant cases?  

The judicial system seemed reluctant to deal with serious cases involving violence against women while waiting for the new legislation on gender-based violence; this lack of justice might be one of the factors behind the high rate of violence against women.  What was the time-frame for the implementation of those laws and for the creation of the tribunal for gender-based violence?  Ms. Sveaass also inquired about measures to change attitudes concerning sex with minors, particularly in the education system; to strengthen maternal care in the country which was an important issue given the high rate of maternal death, largely due to illegal abortion; to prevent violations and threats to human rights defenders, media personnel, justice officials and witnesses; and to ensure training on the Convention, the prevention of torture, the Istanbul Protocol and the protection of women, particularly for the police and military force.  What was the plan in place for the rehabilitation of victims of torture from both the past and the present?

Between five to eight people had died in police institutions between 2006 and 2010 and the cause of death had not been identified; furthermore, several allegations of torture had been made by Bolivians, but there had been no investigation into either those violations or the deaths which were serious issues, why? 

Additional information about the establishment of a national preventive mechanism and the entry in force of the Optional Protocol was needed, considering that the Protocol had been ratified in 2005 and there was a considerable delay in the establishment of the national preventive mechanism.  Concerning the conditions in places of detention, a Committee Expert asked whether the transfer of authority from the Ministry of Interior to the Ministry of Justice had been completed and whether it had resulted in improvements on the ground, particularly in the access to quality medical care in places of detention which was a serious issue of concern.  El Penal de San Pedro, the largest prison with 1,500 inmates, had an unusual penitentiary regime: it had elected a committee of inmates who dictated the rules and was divided in eight sectors with varying degrees of luxury which could be rented out.  What was being done to address this situation?

Concerning torture and ill-treatment during military training, a Committee Expert asked what training purposes had been achieved by the use of such cruel methods and what redress had been provided to victims.  The situation on violence against women had been described by the Committee on the Elimination of Discrimination against Women as bordering femicide and the Expert asked for statistical data and investigations in this regard.  There was an apparent lack of internal control in prisons and the delegation was asked about measures to control prison gangs and root out inmate violence.

The 2010 law had put in place a certain number of reforms in the justice system, particularly in order to speed up judicial proceedings in some cases; cases of torture however were excluded from this provision.  The justice system seemed unable to address the situation of violence against girls in the school environment.  The judicial authorities included a number of persons who were not judges as such, for example public notaries.

FERNANDO MARINO MENENDEZ, Committee Expert and Rapporteur for the Report of Bolivia, took up the issue of diplomatic guarantees and asked whether they were put in place in cases of extradition and whether they included a guarantee against torture.  Mr. Marino Menendez also asked about the implementation in practice of the law against corruption in the police, whether migrants who had received an expulsion decision appealed against it, and violence in military barracks.

NORA SVEAASS, Committee Expert and Rapporteur for the Report of Bolivia, took up the issue of complaints for investigation by the Office of the Ombudsmen and asked what happened once those were lodged in.  Could the delegation provide additional information on the investigation of reprisals and threats against human rights defenders and how lynching was being dealt with considering it was not a crime?

Responses by the Delegation

In response to these questions and comments and others, the delegation of Bolivia said that there had been no cases of femicide reported because the law had just been passed.  Decree 1302 of 2012 established measures to address sexual violence against minors in schools.  The Law N° 348 adopted two months ago presented the first step towards the reduction of maternal mortality rates due to illegal abortion by establishing the recognition of a woman’s decision to undertake abortion without prior judicial approval. 

The Law 348 of March 2013 was an integrated law which guaranteed a life free of violence for women and aimed to set up mechanisms and policies to protect, care for and provide reparations to women victims of violence, and to prosecute and punish perpetrators of that violence.  The law on autonomous territorial authorities incorporated mechanisms for the prevention of violence and aimed to eliminate acts of individual and collective violence directed against women exercising political and public functions.  This law incorporated new crimes of violence against women, including femicide, domestic or family violence, sexual harassment and others.  Women victims of violence could file their complaints with the police as well as with other institutions such as with the comprehensive legal services of municipalities, defenders of children and adolescents, the integrated justice system and with indigenous authorities.

The State had introduced the practice of Juana Azurduy, an economic incentive provided to mothers, in order to reduce maternal and infant mortality rates and the malnutrition rates of children under the age of two.  Under this scheme, women and their children were obliged to attend pre-natal and post-natal visits to health centres, follow the medical advice received and bring their children for regular health checks including vaccination.  There were no reports of systematic abuse of girls in schools, which did not exclude individual cases such as that of Patricia Flores; the State would continue to address those cases accordingly.  The School of the Judges was signing an agreement with universities for the provision of specialized training, which would enable judges to successfully discharge their functions in relation to human rights, women’s rights and combating violence.

There were five new prisons in Bolivia including the Centre for Productive Rehabilitation in Montero and the Centre for Observation and Classification in Santa Cruz.  The strategic plan on penitentiary policies had been in place since 2006 and the penitentiary reform was ongoing; a number of measures to prevent violence among inmates and against the staff were being implemented.  There were 14,272 people deprived of their liberty in Bolivia.  The main crimes committed included theft, abuse, serious injury, theft with violence, attempted murder, attempted rape and homicide.  One of the measures against overcrowding was the Presidential pardon issued in December 2012 to 277 individuals.  Cameras were being introduced to monitor any kind of violent behaviour in prisons by both civilians and inmates.  Children up to the age of six could remain in prison with their mothers, while a judicial permission was needed if a child was to stay with a father.

The reparation to victims of political violence was regulated by a number of laws which authorized the Ministry of Economy and Public Finances to pay out compensation to victims of violence suffered during the dictatorship.  A total of 3,289 requests had been received for compensation for cases of arbitrary detention and 17 claims for cases of torture.  Concerning the compensation to victims of the October 2003 events, 297 families had benefitted, while acts of public recognition had been issued to victims of the violence.

Slavery was prohibited by the Constitution and indigenous peoples such as the Guarani people thus enjoyed protection from slavery; the proposal for the workplan for access to justice for the affected Guarani had been rolled out.  Bolivia was a plurinational state in which over 65 per cent of the population identified themselves as indigenous peoples; they had historically been excluded from power.  Racial discrimination had been prevalent in the country until recently, which had prompted the Special Rapporteur on racial discrimination to call on the media to take greater responsibility in combating racism and racial discrimination during her recent visit to Bolivia in September 2012.

The delegation informed the Committee about the October 2003 events, in which the Government of the former President Gonzalo Sanches de Lozada had used excessive use of force to suppress the mass public protests in La Paz and El Alto; there had been 67 extra-judicial killings and over 400 persons had been victims of the political violence.  Bolivia asked the Committee to assist it in the extradition of the former President Gonzalo Sanches de Lozada to help Bolivia put an end to impunity and close this case.  The delegation also spoke about the case of the Hotel Las Americas and said that no complaints of excessive use of force had been received.

There was an ongoing effort to strengthen institutions to combat crimes and violence against human rights defenders and journalists.  There were specific provisions in the law and the Constitution provided protection to the media and human rights defenders from acts of intimidation, arbitrary detention, enforced disappearances and torture.  These acts of violence constituted a grave violation of the right to life and personal freedom and of the right to freedom of expression.  The Inter-institutional Council had been set up to deal with the rights of victims of enforced disappearances and their families and was working towards approval of the International Convention for the Protection of All Persons from Enforced Disappearance and the enactment of the law to establish the Truth and Rehabilitation Commission for the crimes and human rights violations committed during the period of dictatorship from 1964 to 1982.

The Office of the Ombudsmen had the authority to investigate any individual complaint or violation of human rights.  The right to life, physical integrity and freedom of movement was guaranteed to any person on the Bolivian territory and this allowed the Office of the Ombudsmen to base its action on Constitutional provisions which were rather close to Habeas Corpus.  Describing the process of dealing with a complaint of torture, the delegation noted that the Office of the Ombudsmen carried out an analysis and research of any material brought to his of her attention and then coordinated action with relevant public institutions; the Office of the Ombudsmen also informed the public of the status of the case.  The legal framework during investigations had been reformed and a new democratically elected judicial body had been inaugurated; work was ongoing on drafting the new Criminal Code which would be ready next year.  The Law N° 370 on Migrants, promulgated on 8 May 2013, had brought together all international norms and standards ratified by Bolivia. 

The bill on the national preventive mechanism was currently under the review of the National Social and Economic Council and would soon be presented to Parliament for approval.  This bill would ensure that the mechanism was applicable in all places of deprivation of liberty and would authorize the Office of the Ombudsmen to act as a mechanism for the prevention of torture and other cruel, inhuman or degrading treatment or punishment.  Trafficking in persons and slavery were prohibited by the Bolivian Constitution, while the Law N° 263, promulgated in 2012, aimed at combating trafficking in persons and guaranteed fundamental rights to victims through the consolidation of means and mechanisms for the prevention, protection, prosecution and punishment of such crimes.  

Follow up Questions and Comments by the Committee Experts

FERNANDO MARINO MENENDEZ, Committee Expert and Rapporteur for the Report of Bolivia, took note of the reply on abortion and asked for further clarification of the procedure allowing women to have an abortion without judicial permission.  Necessary resources must be provided to the Office of the Ombudsmen in order to fulfil the function of the national preventive mechanism.  The Law on Migration looked at the situation of irregular migrants and could be seen as being unfair; did it provide for any form of assistance to irregular migrants?  Torture seemed to be part of indigenous jurisdiction and justice; while Bolivia was free to organize itself as it saw fit, the Committee was under the obligation to intervene if indigenous standards or rules and definitions of torture violated international standards.  Concerning the national service for legal defence, the Rapporteur asked whether it was already in place, how the significant resources required for its operation were provided, and how low-income Bolivians could access it.

NORA SVEAASS, Committee Expert and Rapporteur for the Report of Bolivia, thanked the delegation for all the information on the new legislation in Bolivia and the statistics provided and requested further data and information on the number of cases filed under the new law on sexual violence against children in school committed by teachers and how many teachers had to leave schools for committing such acts.  The situation with overcrowding in prisons was very serious, and in some prisons it was even 800 per cent; what was being done to address this situation?  Were any reparations provided to the victims of the October 2003 events?  Was the Istanbul Protocol used by the authorities?  How many complaints of torture had been resolved and how?

Other Experts noted that the rate of 83 per cent of detainees in pre-trial detention was inacceptable and measures alternative to detention must be applied; more than 800 per cent overcrowding in some prisons was unacceptable as well.  What was being done to curb the violence by prison gangs in some of the prisons?  It was very important that penalty scales were known to all those who were in the criminal system and that recidivism in violence against women was prevented.  Bolivia had extremely high maternal mortality rates, particularly in rural areas, and the Committee hoped this would become an area of very practical action of the State.  Given the different types of justice in the country, indigenous and traditional, how were international instruments applied?  

Responses by the Delegation
   
Racism and racial discrimination were criminalized and there were mechanisms in place to ensure protection from these crimes; the legislation also defined the authorities responsible for education on and prevention of the phenomena in both civilian and military realms.  In the education area, new policies had been introduced which recognized diversity and promoted training and education in human rights.  The National Committee on all Forms of Racism was a multi-stakeholder body and all victims of racism and racial discrimination had recourse to constitutional or criminal processes in either indigenous or traditional systems. 

Specific human rights training, including on the Istanbul Protocol, was being provided to the armed forces, police and judiciary.  The Ministry of Defence was building relevant training programmes, including on human dignity, human rights, equal opportunities, gender equality, decolonization, torture and cruel and degrading treatment, prevention of acts of racism and other forms of discrimination, and international humanitarian law.

Bolivia was open to receiving the comments of the Committee concerning the establishment of the national preventive mechanism, as the draft bill setting the mechanism within the Office of the Ombudsmen was currently under discussion.  Indigenous justice judges had the structure that originated from traditional practices and had their own jurisdiction and their own way of working that could not be compared to the traditional one.  The Government had implemented a plan to eradicate slavery and modern exploitation, including of the Guarani people, and had decided in 2011 that the Assembly of the Guarani people would continue to deal with the issue as this situation was beyond the realm of the State. 

Five centres offering integrated services were being set up in the rural areas, with the support of funds provided by Denmark, and would provide access to services of the public prosecutor and the police, as well as services for women victims of violence.  Those centres would also contain model prison cells, the so-called carcelettas, in order to avoid the transfer of prisoners from rural to urban areas, which would reduce overcrowding in prisons and in pre-trial detention.

Closing Remarks

ANGELICA NAVARRO LLANOS, Permanent Representative of Bolivia to the United Nations Office at Geneva, said that Bolivia had followed a long road since the dictatorship, the era in which human rights violations and practice of torture had been the norm.  The Government had spent time to ensure that those practices were eradicated, particularly acts of torture and ill treatment in police institutions which had been particularly grave.  Bolivia would continue to work to ensure it had a society free from torture and ill treatment and the comments of the Committee would help it in moving forward.
 
XUEXIAN WANG, Committee Vice-Chairperson, thanked the delegation and said that the responses and information provided would be taken into account during the process of drafting concluding observations and recommendations.
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