Committee against Torture considers report of Sweden

Committee against Torture

5 November 2014

The Committee against Torture today concluded its consideration of the combined sixth and seventh periodic report of Sweden on its implementation of the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Presenting the report, Anders Rönquist, Director-General for Legal Affairs, Ministry of Foreign Affairs of Sweden, said that Sweden had commissioned an inquiry on the need for a specific provision on torture in the penal law.  Sweden had taken steps to enhance the quality and legal security of the asylum process on the grounds of gender or sexual orientation; it had increased the minimum penalty and the scope of the application of the law for crimes of gross violation of the integrity of women, and had adopted an action plan for the protection of children against human trafficking, exploitation and sexual assault.  The average occupancy in prisons had continued to decrease from 92 per cent in 2011 to 85 per cent in 2013, and from 92 per cent in 2010 to 79 per cent in 2013 in remand prison.
 
Committee Experts said that Sweden should recognize that the specific criminalization of torture with the introduction of penalties commensurable with the offence was a requirement under the Convention.  The adoption of the national action plan to address violence against women was a welcome development, but the efforts to address domestic violence and protect women from violence should be sustained rather than relaxed.  Experts welcomed the ongoing reorganization of the police and asked about plans to establish an independent body to investigate police misconduct and allegations of ill-treatment and torture by law enforcement.  Other issues raised in the discussion included the juvenile justice system, hate crimes, the detention of asylum-seekers and the identification of victims of torture among asylum-seekers, and the treatment of and discrimination against Romani people.
 
In concluding remarks, Mr. Rönquist agreed with the Chairperson on the importance of the legislation on torture and commended the Committee Experts for the comments and questions asked during this dialogue.
 
Claudio Grossman, Committee Chairperson, in concluding remarks said that the Committee was aware of the complexities of Swedish legal system and that the matter of the definition of torture was not a theoretical issue.  The Committee noted a number of interesting initiatives being undertaken by Sweden and was looking forward to see their full implementation in practice.
 
The delegation of Sweden included representatives of the Ministry of Foreign Affairs, Ministry of Justice, Ministry of Health and Social Affairs and the representatives of the Permanent Mission of Sweden to the United Nations Office at Geneva.
 
The Committee will reconvene in public on Thursday, 6 November at 10 a.m. to consider the combined third and fourth periodic report of Venezuela (CAT/C/VEN/3-4).
 
Report of Sweden

The combined sixth and seventh periodic report of Sweden can be read via the following link (CAT/C/SWE/6-7).

Presentation of the Report

ANDERS RÖNQUIST, Director-General for Legal Affairs, Ministry of Foreign Affairs of Sweden, said that on 1 July 2014 the act on criminal responsibility for genocide, crimes against humanity and war crimes had entered into force and it defined the crime of torture as part of genocide, crimes against humanity or war crimes.  The requirements of the Convention were fully met by the Swedish rules and regulations, including by its penal law; nevertheless in June 2014 an inquiry had been commissioned to consider the need for a specific provision on torture in the penal law.  A number of measures had been taken to further enhance the quality and legal security of the asylum process on the ground of gender or sexual orientation and the Migration Board had developed methods for systematic quality monitoring of asylum casework.  In order to address violence against women and trafficking, Sweden had increased the minimum penalty and the scope of the application of the law for crimes of gross violation of integrity of women and had signed the Council of Europe Convention on preventing and combating violence against women and domestic violence in May 2011.  In July 2014 a new crime, coercion to marry, had been introduced, giving jurisdiction to Swedish courts, even when the act was not punishable in the country where it was committed; luring someone to travel abroad with the purpose of forcing them to enter into marriage was also an offence.  Since 2013, the Östergötland County Administrative Board had a commission to develop a national skills team to address forced marriage and child marriage, as well as honour-related violence and oppression.  Amendments to the law had been made to further reinforce and sharpen the protection of sexual integrity and sexual self-determination and the protection of children against sexual abuse, which included widening of the definition of rape.
 
In September 2014, Sweden had initiated an evaluation of the penal provisions on trafficking in human beings and the examination of how law enforcement authorities investigated and handled human trafficking matters, with the objective of ensuring a strong and effective criminal protection against human trafficking.  In February 2014, an action plan for the protection of children against human trafficking, exploitation and sexual assault had been adopted and the Migration Board had been asked to report on measures to detect children in the asylum process that were victims of trafficking or at risk of being trafficked.  The average occupancy in prisons had continued to decrease from 92 per cent in 2011 to 85 per cent in 2013 and from 92 per cent in 2010 to 79 per cent in 2013 in remand prison.  In comparison to international levels, the number of pre-trial detainees in the Swedish criminal process was rather low and the period of pre-trial detention was rather short.  Still there were cases where individuals had to be detained for a long time; this was the case of individuals suspected of very serious crimes.  Swedish law required extraordinary reasons to detain a person under the age of 18 and relatively few persons under the age of 18 were detained awaiting trial; in 2013 the total number of detainees aged 15 to 17 years old was 119, out of which 97 were subject to some kind of restrictions.
 
Questions by Country Rapporteurs
 
SATYABHOOSUN GUPT DOMAH, Committee Expert acting as Country Rapporteur, thanked the delegation and said that Sweden was a model country in terms of compliance with its international and national commitments and obligations; still Article 1 of the Convention, namely the specific incorporation of the definition of torture into national legislation, was a sensitive area.  Sweden should revise its position in this regard and recognize that the specific criminalization of torture with the introduction of penalties commensurable with the offence was a requirement under the Convention.  Mr. Domah noted the measures undertaken to ensure compliance with Article 2 and expressed concern that coercive measures had been envisaged with the use of handcuffs in certain situations; the use of coercive measures should always be subject to judicial oversight. 
 
The adoption of the national action plan to address violence against women was a welcome development, but the efforts to address domestic violence and protect women from violence should be sustained rather than relaxed.  Mr. Domah commended the crime victim compensation authority and the efforts to address human trafficking and the protection of women from trafficking, and asked about the concept of juvenile justice in the criminal system which would ensure better protection of child victims.  The Committee Expert noted with satisfaction the measures to support the human rights situation in Sweden, and stressed that the distinction should be made between human rights situations and the obligations of States under the Convention against Torture; many States made this unfortunate assimilation and failed to describe the specific obligations with regard to the human rights situation they had under the Convention.
 
SAPANA PRADHAN-MALLA, Committee Expert acting as Co-Country Rapporteur, took up the issue of education and training and asked the delegation to provide further information about the methodology to assess the effectiveness of the training and share the results of implementing measures.  Were there any plans to make a manual on the effective investigation and documentation of torture and other cruel, inhuman or degrading treatment or punishment?  The Committee was quite satisfied with the information provided on Article 11 concerning the situation in prisons and asked about the latest occupancy rates and disaggregated data on the basis of sex, age and ethnicity of the prisoners.  Ms. Pradhan-Malla welcomed the direction to the Swedish Prosecution Authority concerning the restrictions and asked for a clarification on persons defined as “visitors” and whether parents or lawyers were included therein. 
 
The Committee was concerned about the laws allowing children and young people to be put in isolation during pre-trial, and about reported restrictions to meet with parents or legal counsellors, said Ms. Pradhan-Malla and inquired about measures to put in place a specialized system of keeping children’s best interest at the centre.  The ongoing inquiry on the reorganization of the police to ensure its greater flexibility and efficiency was welcome, and the delegation was asked about plans to establish an independent body to investigate police misconduct and allegations of ill-treatment and torture by law enforcement. 
 
Questions by the Committee Experts
 
A Committee Expert noted that about 30 per cent of persons seeking asylum in Western countries had been subjected to torture, which made their identification important, also because torture could be used as grounds to grant asylum, and asked about the system in place to ensure the identification and treatment of victims of torture seeking asylum in Sweden?  Sweden was one of a few countries in the world whose prison system was not overcrowded, said another Expert and asked the delegation about solitary confinement, its purpose, the maximum duration, who decided its application and who supervised it. 
 
Another Expert was looking forward to the upcoming explanation of Sweden’s position on the implementation of obligations arising from Articles 1 to 4 of the Convention, including the specific incorporation of torture in the domestic legislation, and asked the delegation about the exceptional transfer of asylum seekers from holding centres to penitentiary institutions of common law, including the percentage of persons transferred and the oversight system in place.
 
Other issues taken up by the Committee Experts included the mechanism to deal with complaints against law enforcement officers, sexual violence in prisons which affected immigrant and refugee women and women with disability, and children in detention who seemed to be punished before the judgement.  With regard to data collection and hate crimes, the delegation was asked whether it was true that Sweden did not collect data disaggregated by ethnicity, race and other markers of diversity.  If this was the case, the Committee asked how the disproportionate sentencing of certain segments of the population was addressed and how hate crimes were identified.
 
CLAUDIO GROSSMAN, Committee Chairperson, said that in Sweden, torture was not called torture but was called something else and inquired about the impact on the victims of torture when the crime they were victims of was called something else.  He also asked about the scope and the process of the Commission of Inquiry that Sweden had established to ascertain the specific definition of torture.  Turning to hate crimes, the Chairperson asked how the priority the Government accorded to combating this phenomenon would be translated into practice.  Mr. Grossman also asked the delegation about the evaluation of the trusteeships for unaccompanied asylum seeking children, the direct applicability of the Convention in the national law, the update on the ratification process and the legislative measures envisaged to implement the Council of Europe Convention on preventing and combating violence against women and domestic violence, the update on the disappearance of foreign asylum-seeking children, and the treatment and discrimination against the Romani people.  How was the fast-changing situation in Iraq taken into account in the asylum procedures?
 
SATYABHOOSUN GUPT DOMAH, Committee Expert acting as Country Rapporteur, took up the issue of the trinity of rights - the right to council, right to communication with the family and the right to medical assistance - and asked for further information on how they were effectively applicable.  How many persons were granted asylum on the grounds of gender identity or sexual orientation? 
 
Replies by the Delegation
 
Responding to the questions and comments made by the Committee Experts, the delegation said that torture could be punished under Swedish law as different crimes: a crime of aggravated assault, of unlawful deprivation of liberty, unlawful coercion or unlawful threat.  The introduction of a specific crime of torture was problematic from a penal law point of view and triggered issues of overlapping criminalization, delimitations of different crimes and concurrence of crimes.  Adding to the complexity, there were differences in how torture was defined in different contexts: according to the Torture Convention, a crime against humanity and a war crime.  The special inquiry had been commissioned in June 2014 to consider the need for a specific provision on torture in the penal law and would make concrete legislative proposals regarding the definition of the crime, criminal jurisdiction and the application of any statute of limitations.  The report was due on 1 September 2015.
 
The new Act on Criminal Responsibility for Genocide, Crimes against Humanity and War Crimes provided a coherent and consistent legal regime that captured Sweden’s international obligations and took into account treaty and customary law obligations set forth, inter alia the Rome Statute, and it assured that the crimes in question could be adjudicated in Sweden to the same extent at least as before the International Criminal Court.  Acts of torture or other inhumane treatment or punishment might qualify and the underlying criminal act for each of the crimes.
 
Sweden had a specific system of juvenile justice and the Young Offenders Act had been introduced in 1964 which made distinctions for different age groups.  Those under 15-years old could not be held criminally responsible at all; children aged between 15 and 18 years of age could be convicted of a crime but were subject to special penalties geared to care rather than punish; while some protective provisions and limitations applied to youth aged 18 to 21.  The criminal process was adapted to the objective of treating young offenders more leniently and was adapted to their youth, and special provisions applied to the court proceedings including trial hearings.  Youth aged 15 to 18 years could be detained only if the prosecutor and the court were convinced that there were extraordinary reasons for the deprivation of liberty of the young offender; in 2013, only 119 youths of this age had been detained in the country. 
 
Swedish criminal trial was based on principles of immediacy and morality with a heavy reliance upon live testimony given in court at trial; therefore, pre-trial detention and restrictions on a detainee’s contacts with others might be necessary to ensure the integrity and quality of the criminal process by protecting evidence during the criminal investigation.  The Constitution provided for a general protection against the deprivation of personal liberty and pre-requisites for pre-trial detention were laid down in law; a general principle of proportionality applied and was also set forth in the law.  A suspect deprived of liberty by order of a prosecutor or a court had an absolute right to public defence counsel; the decision to detain a suspect awaiting trial was taken by a court at the request of the public prosecutor, and the decision on pre-trial detention must be reviewed by the court every two weeks.
 
In relation to questions asked about domestic violence, the delegation noted that the efforts to combat this phenomenon had been very intense in recent years and contained initiatives in several areas, including criminalization and effective investigations and prosecutions.  Between 2011 and 2014, Sweden had allocated more than 24 million Euro to efforts to tackle domestic violence and had appointed a national coordinator on domestic violence in April 2012, who in her June 2014 report had called for better coordination of public efforts towards victims and for increased focus on perpetrators.  Based on the statistical data collected in 2012, women were more often victims of severe violence and had greater need for assistance and support, including medical care.  One out of five persons was the victim of physical or psychological violence at least once in their life and at least 150,000 children lived in households where violence existed and the majority did not report violence to the police.  The Government was also conducting an assessment of various initiatives in the area of domestic violence during the period 2010 to 2014 with the aim of developing a national strategy to defeat violence against women. 
 
Turning to the questions on suicide in prisons, the delegation said that major steps had been taken to prevent suicide, including extended use of psychologists and psychiatrists.  Risk assessment of suicidal thoughts and behaviour was conducted upon arrival, while persons at high risk of self-harming and suicide were under expanded surveillance.  Everyone who worked in close contact with clients within prison and remand prison institutions were trained to handle emergencies, first aid and self-harming acts, and nurses employed by the Swedish Prison and Probation Service received extended training in suicidal behaviour and suicide prevention.
 
Several Committee Experts asked questions concerning asylum procedures and detention of asylum-seekers, and the delegation noted that the Swedish Aliens Act regulated detention and supervision of foreign nationals, which called for the use of supervision rather than detention wherever possible.  Detention was used only in certain cases and strict time limits applied, to a maximum of 12 months.  The detention centres, run by the Swedish Migration Board, were specially designed not to look like institutions for correctional treatment and detainees enjoyed a considerable degree of freedom and had substantial access to contacts with the outside world.  During 2013, in which the total number of asylum seekers amounted to 54,000 persons, 2,893 aliens had been detained and the average time spent in detention was five days.  All cases regarding asylum-seekers were individually considered and the Swedish Migration Board closely followed the situation in Iraq and published guidelines for decision-makers; the latest were issued in October this year.  In terms of return to Iraq, the delegation said that 505 persons returned voluntarily and 250 non-voluntarily in 2012; 347 returned voluntarily and 134 non-voluntarily in 2013; and 105 returned voluntarily and 31 non-voluntarily during the first six months this year.
 
Trafficking in human beings continued to provide challenges and protection of victims was a key priority.  A referral mechanism to protect victims was being developed and additional training was being provided to improve identification of victims.  Generally speaking, the number of victims of trafficking for forms of exploitation other than sexual, such as labour exploitation, begging and petty crimes was on the increase.  Purchase of sexual service had been prohibited in Sweden since 1999, but performing sexual services was not a crime.  Demand was the primary factor that maintained both prostitution and human trafficking and efforts to counteract the demand to buy sex were therefore fundamental in combating both those phenomena.  Sweden was seen as a poor market by criminal groups that sold women for sexual purposes and it was clear that the law prohibiting the buying of sex acted as a barrier against traffickers wanting to do business in Sweden.
 
Concerning the independent body for the investigation of alleged police misconduct, the delegation said that as of 1 January 2015, the 21 county police services would be merged into one single Swedish Police Service, and an autonomous Department of Special Investigations would be established to supervise the Police, with national and regional committees to monitor and safeguard the democratic control of the Police.
 
On hate crimes, it was important to say that for well-known historical reasons, Sweden did not compile official statistics on people’s ethnicity or religion.  Hate crimes could manifest in several ways and what made a crime a hate crime was the motive behind it; when hate motive was established, a specific provision aggravating the crime applied.  Combating hate crime was a priority and the Government had tasked the Equality Ombudsman to intensify the work against xenophobia for the period 2014 to 2017.
 
Concerning the prevention of incidents such as the one in the Operation Artemis in the Democratic Republic of the Congo in 2003, the head of the delegation said that Swedish Armed Forces had investigated the matter in 2007 and had issued a standing order to Swedish troop contingents directing that any grave human rights violations witnessed in the operational area were to be reported to the Swedish Armed Forces Headquarters.  No such reports had been received since the standing order had been issued.  The army received training in international humanitarian law and international human rights law, the focus of which was on the individual soldiers own behaviour.
 
Further Questions by the Committee Experts
 
SATYABHOOSUN GUPT DOMAH, Committee Expert acting as Country Rapporteur, took up the issue of the definition of torture and said that the jurisdiction of the Rome Statute was with the International Criminal Court, which made the application of the definition of torture in the domestic law important.  Defining torture in national legislation would also make the reading of statistics and the assessment of the compliance with the provisions of the Convention easier.  It was unacceptable that today there were still juveniles in remand prisons, and some of them were being deprived of liberty for long periods of time; what exactly were the “exceptional reasons” that the law said were necessary for the detention of juveniles, who defined them and who ascertained they existed in a particular case?
 
SAPANA PRADHAN-MALLA, Committee Expert acting as Country Rapporteur, was concerned that 191 juveniles had been detained in 2013, and that some were kept in solitary confinement.  Hate crimes were another issue of concern and Ms. Pradhan-Malla asked about other measures to prosecute the accused of those crimes and harmonize the society.
 
On the identification of victims of torture among the 60,000 asylum-seekers who entered the country every year, an Expert asked the delegation to provide additional information on the identification process and the training provided to medical staff, law enforcement officers and lawyers in this regard.
 
Other Experts asked the delegation to further expand on replies provided so far concerning solitary confinement in pre-trial detention, the procedure for non-voluntary returns to Iraq that continued also this year in which instability in this country continued, the situation of youth in the suburbs and the behaviour of the police, detention of foreign nationals and the system in place allowing asylum-seekers to challenge that detention, and the statistics on diversity and alternative means in which data on ethnicity or race was collected.
 
CLAUDIO GROSSMAN, Committee Chairperson, asked the delegation about the exceptional detention of asylum-seekers and how often it occurred, the incentives for voluntary return to Iraq, and the definition of torture used in the context of crimes against humanity and war crimes.
 
Further Responses by the Delegation
 
In response to the issues raised by the Experts, the head of the delegation said, concerning the asylum process, that everyone had the right to seek asylum in Sweden and no one was turned away from the border.  The guidelines for the identification of victims of torture among the asylum-seekers were very important and were widely distributed among lawyers and other officers participating in the asylum process.  There were about 600 Iraqi asylum-seekers who brought their cases to the European Court of Human Rights; it was important to say that not all requests for asylum of persons from Iraq were approved automatically.  All requests of asylum and return were examined individually and the situation in different regions in Iraq was always taken into account by the Swedish Migration Board.  Once the Swedish Migration Court decided that there were no grounds for asylum, it was expected that a person would return to the country of origin voluntarily; non-voluntary return occurred only when individuals ignored the Swedish provisions on return to their countries of origin.  
 
The delegation said that the act on genocide, crimes against humanity and war crimes as a Swedish national law was inspired by international commitments.  Sweden had a dualist legal system which meant that international instruments, and in particular criminal provisions, must be domesticated into the national legislation; that was a specific task of the inquiry looking at the crime of torture and the delegation did not want to comment on its possible outcomes.  In Swedish law, detention did not mean a restriction in contacts with the outside world and there was no such thing as isolation for confession; there were two reasons to restrict contacts with the outside world: one, to preserve the evidence and prevent impeding of an investigation, and second for security reasons.  Restrictions were supervised and authorised by courts and individual forms of restrictions were reviewed by courts. 
 
Concerning statistics on torture, a member of the delegation said that more than 6,000 cases of police misconduct had been reported, and that most of them had been filed by police officers who wanted clarification on whether indeed there had been misconduct by members of the law enforcement; however, no cases of torture-type offences were included in this caseload.  The delegation recognized the need for continuous work to address the situation in Malmö and expressed confidence in the police force there to develop expertise to effectively deal with hate crimes.
 
In terms of the incentives for voluntary return, the delegation said that persons going back to Iraq were entitled to receive about 3,500 Euro per adult and a smaller amount per child.
 
Concluding Remarks
 
CLAUDIO GROSSMAN, Committee Chairperson, said that the Committee was aware of the complexities of the Swedish legal system and that the matter of definition was not a theoretical issue.  The Committee noted a number of interesting initiatives being undertaken by Sweden and was looking forward to see their full implementation in practice.
 
ANDERS RÖNQUIST, Director-General for Legal Affairs, Ministry of Foreign Affairs of Sweden, in his closing remarks agreed with the Chairperson on the importance of the legislation on torture, which was evident in the case of Belgium vs. Senegal.  Sweden was looking forward to receiving the Committee’s concluding observations and Mr. Rönquist commended the Committee Experts for their comments and questions.

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