Human Rights Council holds interactive dialogue on truth, justice, reparation and non-recurrence and on arbitrary detention

Human Rights Council 
AFTERNOON

10 September 2014

The Human Rights Council this afternoon held a clustered interactive dialogue with the Special Rapporteur on truth, justice, reparation and non-recurrence, Pablo de Greiff, and with the Chairperson of the Working Group on arbitrary detention, Mads Andenas.
 
Pablo de Greiff, Special Rapporteur on truth, justice, reparation and non-recurrence, said that notwithstanding clear State obligations, only a fraction of perpetrators were ever investigated and prosecuted.  Prioritization strategies were needed for the investigation and prosecution of violations with the view of maximizing accountability. Guaranteeing the independence and autonomy of prosecutors and the safety and the centrality of victim participation were States’ obligations. 
 
Mads Andenas, Chairperson of the Working Group on arbitrary detention, regretted that several areas of insufficient protection of persons deprived of their liberty and their right to court review of detention remained.  To strengthen the protection of all persons deprived of their liberty, it was necessary to address clear protection gaps through the development of draft principles and guidelines on remedies and procedures on the right to court review of detention. 
 
Spain, Uruguay, Brazil, Greece, Hungary and Morocco spoke as concerned countries.  Also speaking after concerned countries were the following national human rights institutions: Greek National Commission for Human Rights and Human Rights Council of Morocco. 
 
In the ensuing discussion, speakers stressed the importance of accountability, access to justice and the independence of prosecutors in order to prevent non-recurrence.  Speakers also underlined the necessity to protect victims and include them, together with women, in truth and reconciliation processes. 
 
With regard to arbitrary detention, speakers stressed the importance of protecting the right to liberty and the rule of law and presented their national efforts to ensure the protection of their citizens against arbitrary detention.  Speakers also underlined that pre-trial detention constituted an exceptional measure and detention conditions had to be sanitary, safe and humane.
 
Speaking in the interactive dialogue were Pakistan on behalf of the Organization of Islamic Cooperation, Costa Rica on behalf of the Community of Latin American and Caribbean States, European Union, Czech Republic, Maldives, Austria, Mexico, Indonesia, Russian Federation, Croatia, Republic of Korea, United States, International Committee of the Red Cross, Argentina, Brazil, Denmark, Armenia, Sierra Leone, Angola, Venezuela, Iraq, Bahrain, Paraguay, Ukraine, Switzerland, Algeria, Germany, Norway, Poland and Belgium. 
 
The Russian Federation spoke in a right of reply in response to statements made earlier today. 
 
Following an official Swiss holiday on Thursday, 11 September, the Human Rights Council will resume its work on Friday, 12 September at 9 a.m., when it will hold a panel discussion on the right to privacy at the digital age.  It will continue its interactive dialogue with the Special Rapporteur on truth, justice, reparation and non-recurrence and the Chairperson of the Working Group on arbitrary detention on Friday at noon. 
 
Documentation
 
The Council has before it the report of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence (A/HRC/27/56)
 
The Council has before it an addendum to the report of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence - Mission to Spain (A/HRC/27/56/Add.1)
 
The Council has before it an addendum to the report of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence - Mission to Uruguay (A/HRC/27/56/Add.2) (only available in Spanish)
 
The Council has before it the report of the Working Group on Arbitrary Detention: A compilation of national, regional and international laws, regulations and practices on the right to challenge the lawfulness of detention before court (A/HRC/27/47).
 
The Council has before it the report of the Working Group on Arbitrary Detention (A/HRC/27/48)
 
The Council has before it an addendum to the report of the Working Group on Arbitrary Detention - Opinions adopted by the Working Group on Arbitrary Detention (A/HRC/27/48/Add.1)
 
The Council has before it an addendum to the report of the Working Group on Arbitrary Detention - Mission to Greece (A/HRC/27/48/Add.2)
 
The Council has before it an addendum to the report of the Working Group on Arbitrary Detention - Mission to Brazil (A/HRC/27/48/Add.3)
 
The Council has before it an addendum to the report of the Working Group on Arbitrary Detention - Mission to Hungary (A/HRC/27/48/Add.4)
 
The Council has before it an addendum to the report of the Working Group on Arbitrary Detention - Mission to Morocco (A/HRC/27/48/Add.5)
 
The Council has before it an addendum to the report of the Working Group on Arbitrary Detention - Mission to Greece: comments by the State on the report of the Working Group on Arbitrary Detention (A/HRC/27/48/Add.6)
 
The Council has before it an addendum to the report of the Working Group on Arbitrary Detention - Mission to Morocco: comments by the State on the report of the Working Group on Arbitrary Detention (A/HRC/27/48/Add.7) (Only available in French)
 
Presentation by the Special Rapporteur on Truth, Justice, Reparation and Non-Recurrence and the Chair of the Working Group on Arbitrary Detention
 
PABLO DE GRIEFF, Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, stated that the contributions of prosecutions to transitional processes were manifold, but traditional justice could not be reduced to criminal prosecutions.  Post-authoritarian and post-conflict situations posed particular challenges to the pursuit of justice, such as a high number of suspected perpetrators, the relative scarcity of financial and human resources, and the insufficient will to address and redress massive violations of the past.  Notwithstanding clear State obligations, practice had demonstrated that only a fraction of perpetrators were ever investigated and prosecuted.  For such reasons, prioritization strategies were needed in order to establish a strategic order for the investigation and prosecution of violations with the view of maximizing accountability. Possible elements of a prosecutorial prioritization strategy could include the so-called “easiest” cases, “high impact” cases, “symbolic or paradigmatic” cases, “most serious violations” and “most responsible perpetrators”.  A strategy should not be too limiting, as judicial processes were dynamic and prosecutorial possibilities shifted at different stages of a transitional process.  Strategies for prosecutions should be particularly concerned with the systemic or structural dimensions of massive violations, the patterns of violations, the identification of chains of command, and other mutually supporting arrangements.
 
The independence and autonomy of prosecutors was one of the main safeguards in preventing criminal justice from becoming an instrument of the powerful.  Establishing effective means to guarantee the independence and autonomy of prosecutors was a State’s duty.  The report emphasized the centrality of victim participation, which gave the victims the status of a rights-holder and manifested the right to truth.  States were urged to fulfill their duty to guarantee the safety of victims and witnesses. Regarding the visit to Uruguay, Mr. de Grieff said that Uruguay had made progress in prosecuting serious State officials for abuses, but some practices contravened international standards of truth.  Many serious human rights violations, such as arbitrary detentions, which had occurred during the dictatorship, continued to be seen.  All three branches of government in Uruguay had to make further efforts to strengthen its work done with regard to arbitrary detention and torture.  In Spain, the period of the dictatorship had yielded a huge number of human rights violations.  Democratization of the armed forces represented one of the main ways of dealing with the legacy of the dictatorship.  Major voids could be seen in the areas of truth and justice; the responsibility to find remains of victims was left to their families.  Themes of truth, justice,  reparation and non-repetition should be universal and not a matter of political discussion.
 
MADS ANDENAS, Chair-Rapporteur of the Working Group on arbitrary detention, said that in 2013 under its regular procedure the Working Group had adopted 60 Opinions on individual cases regarding the detention of 431 persons in 39 countries and had transmitted a total of 110 urgent appeals to 37 States concerning 680 individuals.  Topics of concern in 2013 included the practice of over-incarceration in the context of pre-trial detention, and the practice of keeping girls and women in detention for the purpose of protecting them from risks of serious violence, or so-called protective custody.  Action against Judge Afiuni was considered an act of reprisal and the Working Group called again on Venezuela to provide Ms. Afiuni with effective reparation.  The Working Group had also addressed the right to court review in the respective legal frameworks and had developed preliminary draft principles on procedures and remedies to challenge the lawfulness of detention before courts.  Several areas of insufficient protection of persons deprived of their liberty and their right to court review of detention remained, including gaps in the implementation of the substantive obligations of States to ensure that all persons in all situations of deprivation of liberty were entitled to bring proceedings before a court without delay and receive appropriate remedy, and also the lack of clarity of the State’s obligations to provide the requisite procedural guarantees to ensure the effective and real exercise of the right to challenge the detention.  To strengthen the protection of all persons deprived of their liberty, it was necessary to restate general principles of protection in more specific detail and to address clear protection gaps through the development of draft principles and guidelines on remedies and procedures on the right to court review of detention.
 
Turning to country visits, Mr. Andenas commended Greece for a number of positive initiatives to improve the situation of deprivation of liberty, including in the area of migration and asylum, and noted with concern the policy of systematically detaining all irregular migrants entering Greek territory, including families and unaccompanied minors.  On a country visit to Brazil, which had one of the largest prison populations in the world with more than 550,000 prisoners, the Working Group acknowledged the challenges that Brazil was facing in tackling rising incidents of criminal activities such as homicide, gang violence, drug and human trafficking, and cautioned that Government policies and actions relating to deprivation of liberty at the Federal and State level should fully adhere and conform to international human rights standards.  On a country visit to Hungary, the existence of an Ombudsman’s Office as the national human rights institution in Hungary had had a positive impact and Mr. Andenas observed with concern the high number of pre-trial detainees; an increased number of pre-trial detentions lasting for longer than a year; and arbitrary court decisions ordering pre-trial detention.  Concerning the visit to Morocco, the Working Group noted the efforts to establish a human rights culture in the country, including the establishment of the National Council for Human Rights; the Working Group expressed concern about the practice of torture and ill treatment during arrest and detention, while a number of complaints had been received concerning arbitrary detention in Western Sahara.  In closing, Mr. Andenas said that the phenomenon of arbitrary detention continued to be on the rise and this was a problem that they had to confront together in order to guarantee the right to liberty.
 
Statements by Concerned Countries
 
Spain, speaking as a concerned country, said as the Special Rapporteur himself had said that there were no magic recipes or infallible formulae to guarantee the success of a transition process.  The transition in Spain had been a complex phenomenon that had culminated in the achievement of the consolidation of democracy, which it found went hand in hand with non-repetition.  Spain was grateful that the Special Rapporteur had looked at the Amnesty Law of 1977.  This law had been adopted by democratically elected parliamentarians who were fully aware of the important step being taken.  Spain was grateful that the Special Rapporteur had recognized efforts made in terms of reparations.
 
Uruguay, speaking as a concerned country, said it had consulted all actors to give follow-up to recommendations made by the Special Rapporteur.  It was pointed out that the Senate of the Republic had carefully looked at the law to reform the Criminal Code proceedings.  Investigations on assassinations carried out by State agents had been looked into, and the existence of a genetic bank had made it possible to identify the remains of persons that had disappeared.  An inter-institutional archive working group had also been established.  The Supreme Court of Justice had stated that to give strict fulfilment of international regulations on human rights standards represented an absolute priority.
 
Brazil, speaking as a concerned country, said that it was regrettable that the Working Group on arbitrary detention had not taken into account many of Brazil’s comments on the preliminary report.  The elimination of discrimination was a priority for Brazil.  Indigenous populations accounted for only 0.16 per cent of the total prison population.  Generalizations regarding the judiciary were also ill-founded and the claim that the Public Prosecution Service had no investigative powers was inaccurate.  A new migration bill was under discussion in Congress.  Many immigrants had been accepted as refugees, upon approval by the National Committee for Refugees.
 
Greece, speaking as a concerned country, stated that the report for Greece contained a series of positive developments and steps taken by the Greek State.  Greece considered arbitrary detention as a major violation of human rights and fully subscribed to the principle of constant and international monitoring for its eradication.  Under no circumstances were aliens detained systematically and with no distinction.  Detention facilities not fulfilling the essential operation conditions had been closed down.  A significant number of detainees, more than 750, had been released in 2014, and the total number of prisoners in Greek prisons had also been reduced to around 12,000.
 
Greek National Commission for Human Rights shared the Working Group’s concern for the length of detention of migrants, bad detention conditions and the heavy backlog of asylum cases.  The Dublin system criteria overburdened the Greek asylum system, in particular at times of financial crisis.  Budget cuts had dangerously affected the de-institutionalization of the mentally ill.  The European Union asylum system had to be redesigned and focus on human dignity and rights, and not merely on ways to stockpile human beings in some Member States. 
 
Hungary, speaking as a concerned country, said it fully supported the mandate of the Working Group on arbitrary detention and highly appreciated its balanced approach and professional conduct during its visit to the country.  There were certain points in the report by the Working Group that however could be further clarified or corrected, in particular with regards to the provisions of the Act on Misdemeanours, asylum detention and certain figures and data. 
 
Morocco, speaking as a concerned country, reiterated its readiness to cooperate with United Nations human rights mechanisms.  Contacts were currently being made to plan further visits.  Morocco welcomed the visit made by the Working Group on arbitrary detention and announced that it had been in a position to address a number of asylum requests.  Morocco added that the Working Group’s visit was not an end in itself and would lead to further cooperation.  Recommendations made in the country report fell under efforts currently being made by Morocco to improve the situation in the country on this issue, including reforms regarding military courts and prosecutions.  Morocco was committed to investigate, correct and redress alleged cases of torture in detention facilities. 
 
Human Rights Council of Morocco attached great importance to holding dialogues with the Working Group, and shared its conclusions with regards to detention conditions.  It welcomed the observations made by the Working Group on the legislative framework and highlighted the importance of enabling individuals to consult a lawyer immediately.  It also underlined the importance of providing an effective remedy to detainees.  It welcomed the observations made with regards to the issue of trafficking in humans. 
 
Interactive Dialogue with the Special Rapporteur on Truth, Justice, Reparation and Non-Recurrence and the Chair of the Working Group on Arbitrary Detention
 
Pakistan, speaking on behalf of the Organization of Islamic Cooperation, said that prosecution prioritization was a complex issue that required a multidimensional approach.  The Organization of Islamic Cooperation strongly believed that an effective prosecution system was not only indispensable to ensure justice for victims but also to guarantee the existence of a fair and just society.  Costa Rica, speaking on behalf of the Community of Latin American and Caribbean States, understood that analysis carried out on the possibility of elaborating strategies to prioritize prosecutions of human rights violators and violators of international humanitarian law represented a significant contribution to improving accountability mechanisms.  European Union said that given the State’s primary duty to investigate and prosecute crimes under national or international law, it was particularly engaged in promoting and strengthening the capacity of national judicial systems to investigate and prosecute these crimes.
 
Maldives said that in places where gross violations of human rights and international humanitarian law occurred, establishing accountability measures and restoring faith in State institutions could be a difficult and lengthy process.  It called upon States to comply with their international obligations when arresting and detaining persons.  Austria shared the concern of the Special Rapporteur that despite national and international obligations, countries in transition had been shown to be greatly tempted by amnesties, including blanket amnesties that shielded perpetrators of even the worst violations from their legal responsibility.  Czech Republic shared the opinion that in transitional situations, in the aftermath of mass violations, efforts had to be directed at increasing the effectiveness of prosecutions.  It welcomed the outlined prosecution prioritization strategies for violations of international human rights and international humanitarian law. 
 
Mexico recognized the right of victims of human rights violations to receive reparations.  Laws in Mexico prevented repetition of such violations and promoted restorative justice, which was why there was a fund for holistic support and reparation to victims.  Indonesia agreed that there was no shortcut to social reconciliation in the society, and there was no single strategy which could be used at all times.  Participation of victims in the design of a prosecutorial strategy was significant.  What was the best way to solicit victims’ views in that regard?  Russian Federation drew attention to the recommendation on the rights of the detained to due process.  In Ukraine, arbitrary detention was widely used, and had been widely used against journalists, including Russian journalists, non-governmental organizations and local authorities in the east of the country.
 
Croatia supported recommendations aimed at enforcing protection of the right to liberty of every human being under international humanitarian law.  Pre-trial detention constituted an exceptional measure and detention conditions had to be sanitary, safe and humane.  Croatia supported all efforts towards the elimination of protective custody for women and girls. 
Republic of Korea shared Mr. de Grieff’s view on the necessity of the prosecutorial prioritization strategies.  Ensuring the independence of prosecutors was a challenging task, especially in the context of transitional justice.  The Republic of Korea believed that the international community ought to maintain its focus on the fact that there still remained diverse forms of arbitrary detention.  United States agreed that criminal prosecutions of human rights violators and those who violated international humanitarian law played a critical role in restoring confidence in the rule of law.  Failure to develop and implement a credible prosecutorial strategy might lead to the recurrence of violations.  The United States would continue to review the preliminary draft principles and guidelines.
 
International Committee of the Red Cross said that prosecuting serious violations was an international law requirement.  No amnesty provisions should be drawn to provide obstacles to full accountability.  The participation of the victims had to be guaranteed and the use of forensic evidence had to be explored to further improve the resolution of cases of disappearances.  Argentina agreed that the elaboration of national strategies for truth, justice, reparation and non-recurrence was a key tool of transitional justice.  Argentina was one of the first countries to use such strategies, and underwent efforts to ensure the protection of victims.  It was important as well to ensure the involvement of victims in the elaboration of national strategies. 
 
Brazil said it attached great importance to the right to truth, memory and reconciliation.  Brazil had implemented measures to promote the right to truth and mechanisms to cooperate with neighbouring countries with the exchange of documents necessary to ensure truth, justice and reparation.  Denmark welcomed the report by the Special Rapporteur on truth, justice, reparation and non-recurrence, and said that failure to ensure proper accountability increased the dangers of recurrence of mass atrocities.  Denmark asked the Special Rapporteur what cooperation he was undergoing with other United Nations mechanisms.  Armenia attached great importance to the mandate of the Special Rapporteur on truth, justice, reparation and non-recurrence and welcomed his comprehensive approach to the issue.  Armenia was pleased to see the attention paid to the crucial role of victims in sharing and collecting evidence. 
 
Angola said it respected and protected the right to liberty based on the principles of the rule of law, and in line with legislation enforced in this area.  Nonetheless, the enjoyment of this liberty should not present a threat to security, public order, or to the rights or freedoms of others.  Iraq said that it had been extending its legislative and legal guarantees to all trials and that it provided that detention may not be carried out in non-specified premises.  Furthermore, the detained persons had to be presented to the courts within 24 hours.  Venezuela said that once more reference had been made to Afiuni Mora.  This former judge had refused to abide by the sentence of the Supreme Court.  The Working Group had expressed concern with regards to her detention, considering this as reprisal.  In doing so, it was betraying the truth and the mandate it was given.  Sierra Leone said that following the war, it had taken great steps to ensure truth, justice and accountability for crimes committed.  After a civil war in which a large number persons were involved in atrocities, was it possible or advisable to bring everyone to justice in a reasonable time frame? 
 
Bahrain had set up the Commission for the Rights of Detainees and Prisoners, which was the main preventative mechanism in the country, and reiterated its commitment to further reform its system.  Paraguay had drafted the law for the implementation of the Rome Statute, which was evidence of its commitment and political will to investigate and prosecute violations of international humanitarian law.  Transitional justice should not be just boiled down to criminal justice and Paraguay attached great importance to memory.  Ukraine drew attention to the abduction and arbitrary detention of Ukrainian citizens by groups supported by Russia, which acted as a State that cooperated with terrorists in kidnapping people.  Switzerland said that general amnesty for crimes such as genocide, war crimes and crimes against humanity was no longer possible and the question now was who would prosecute those responsible, when, under which conditions and within which framework. 
 
Algeria believed that combating impunity through the promotion of truth and justice should be done in a comprehensive framework, first through the promotion of domestic initiatives which took into account specific national contexts.    Algeria also believed that the compilation of best practices on challenging legality of detention would assist States to reinforce their national legislation.  With regard to the report on prosecutorial prioritization, which presented interesting strategies for handling prosecution issues in the aftermath of gross human rights violations and serious violations of international humanitarian law, Germany encouraged Mr. de Greiff to continue the work on the institutionalization of participation mechanisms for victims.
 
Norway said that the mandate of the Working Group on arbitrary detention was extremely relevant at a time when thousands of human rights defenders and activists were detained arbitrarily.  Concerning transitional justice, Norway believed that the inclusion of women in reconciliation processes was key and that the rights of children had to be respected.  Poland shared the view of the Special Rapporteur on truth, justice, reparation and non-recurrence that refraining from prosecuting was not an option, but insisted that transitional justice should not only focus on prosecution but also on reconciliation in order to prevent revenge.  Poland agreed that international cooperation was vital for transitional processes.  Belgium asked for more precision on the Special Rapporteur on truth, justice, reparation and non-recurrence’s notion of a prosecutorial prioritization strategy.  Belgium shared the view of the Special Rapporteur that international cooperation was necessary, and announced that it had, together with other countries, taken the initiative to develop a multilateral treaty on extradition for the most serious international crimes.  On arbitrary detention, Belgium regretted that several States still had not provided answers to visit requests by the Working Group. 
 
Remarks by the Special Rapporteur on Truth, Justice, Reparation and Non-Recurrence
 
PABLO DE GREIFF, Special Rapporteur on truth, justice, reparation and non-recurrence, welcomed that Uruguay had voluntarily decided to present a report on the implementation of recommendations made by the Special Rapporteur.  The Special Rapporteur also expressed again his satisfaction with the cooperation by Spain.  The transcripts of the parliamentary sessions prior to the adoption of the amnesty law in Spain did not show many debates on the issue, even if the law seemed to meet the population’s will.  There were alternative ways to interpret the consequence of this law, including a way that did not preclude prosecutorial investigations. 
 
Right of Reply
 
Russia, speaking in a right of reply, said that after the reunification of Crimea with Russia following free expression of the political will of the population, all rights of detainees had been ensured in accordance with relevant international and national legislation.  Ukraine continued to detain people suspected of terrorist activities in flagrant violations of due process, without access to lawyers or contacts with their families.  This was in fact abduction.
 
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