Committee against Torture considers report of the Republic of Congo

23 April 2015

The Committee against Torture today concluded its consideration of the initial report of the Republic of Congo on its implementation of the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Introducing the report, Alphonse Dinard Moubangat Moukonzi, Director of the Cabinet of the Secretary of State, Coordinator of Sovereignty Issues, Keeper of the Seals and Minister of Justice of the Republic of Congo, recalled that the Republic of Congo ratified the Convention without reservation in 2003. Following its election in 2014 as a Member State to the Human Rights Council, it had emphasized a desire to strengthen efforts to combat all forms of discrimination, including torture. Mr. Moubangat Moukonzi listed positive reforms and legislative developments, including new measures for the oversight of detention facilities and the use of pre-trial detention. Acts which may constitute cruel, inhumane or degrading treatment were prohibited and carried severe punishments. Challenges included overcrowding in prisons, an understaffed judiciary, slow procedures and over-long detention periods. Congo was well aware of the thousands of men, women and children who were victims of the scourge of torture worldwide and would always seek to ensure their voice was heard.

During the dialogue, Committee Experts expressed serious concern that torture, violence and ill-treatment in places of detention were widespread and routinely practiced by police officers in Congo. They raised cases of people who had died in police custody after being tortured and asked about the alleged harassment of the President of the Human Rights Commission, Jean Martin Nbemba, by the police. Prison overcrowding in Congo was dire and contributed to widespread human rights abuses, several Experts said. Questions were asked about degrading living conditions in prisons, the lack of complaints about torture because of widespread fear of reprisals, sexual violence in conflict, the use of pre-trial detention and secret detention centres. Human rights violations committed during mass deportations of foreigners, particularly to the Democratic Republic of the Congo, were raised. The delegation was asked about oversight of detention facilities and whether non-governmental organizations had permission to visit places of detention. An Expert said the Congolese legal system had lost all credibility and people overwhelmingly had no trust in the justice system.

Claudio Grossman, Committee Chairperson, in concluding remarks, thanked the delegation for the interactive dialogue. He said the Committee would reflect upon the basis of the information provided to it and subsequently adopt and publicize its concluding recommendations on the report.

The delegation of Congo included representatives of the Ministry of Justice and Human Rights, Directorate of Human Rights, Directorate of Women’s Rights, Directorate of Social Affairs, Supreme Court of Brazzaville and the Permanent Mission of Congo to the United Nations Office at Geneva.

The Committee will reconvene in public on Friday, 24 April at 10 a.m. to meet with non-governmental organizations. At 3 p.m. it will conclude its consideration of the second report of Romania (CAT/C/ROU/2).

Report

The initial report of Congo can be read here: (CAT/C/COG/1).

Presentation of the Report

ALPHONSE DINARD MOUBANGAT MOUKONZI, Director of the Cabinet of the Secretary of State, Coordinator of Sovereignty Issues, Keeper of the Seals and Minister of Justice of the Republic of Congo, recalled that the Republic of Congo ratified the Convention without reservation in 2003. Following its election in 2014 as a Member State to the Human Rights Council, Congo had emphasized its desire to ratify all the human rights treaties to which it was not yet a party and to strengthen efforts to combat all forms of discrimination, including torture. In that regard, the results seen on the ground so far were encouraging. Positive reforms included the prohibition of any act of torture or cruel, degrading or inhuman treatment in the constitution, the inclusion of sanctions for torture in domestic law, the reorganization of law enforcement agencies following the violence between 1993 and 1999, and new measures for oversight of custody, pre-trial detention and prohibition of arbitrary detention in the Criminal Code. Particular attention had been paid to awareness-raising and education in the field of human rights and regular seminars were provided for law enforcement officers, including the police, members of the armed forces and members of the judiciary, thanks in particular to the efforts of civil society. Human rights principles were also included in school and university curricula.

The Government aimed to have a situation where “freedom was the principle and detention was the exception” said Mr. Moubangat Moukonzi. Acts which may constitute cruel, inhumane or degrading treatment were prohibited and carried severe punishments.

The process of obtaining evidence or confessions was flanked by a range of guarantees under the Criminal Code. Any form of evidence which failed to respect the dignity of a human person or was obtained through the use of torture was prohibited. Very long interrogations and the threatening of a witness were also strictly prohibited. Anybody had the right to make a complaint that they had been a victim of torture and complaints were examined in good time. Mr. Moubangat Moukonzi referred to the ‘Mbata ya bakolo’ case when 18 police officers were found guilty of acts of theft and extortion during the repatriation of a group of irregular foreigners, on 18 April 2014. Victims were entitled to full reparations by law, he noted. The impartiality and independence of judges in prosecution and sentencing procedures was guaranteed, and should it be questioned a defendant could request the removal of a judge from a trial. The extradition of a political or any other category of offender was prohibited if the requesting State failed to provide the proper guarantees that the person would not be tortured.

Congo faced many challenges in implementing the Convention at many levels, said Mr. Moubangat Moukonzi. They included the lack of awareness about human rights in general among the public as well as the State officials who were responsible for implementing the law. There were not enough staff to administer justice. Procedures were slow and people were detained for too long. There was also overcrowding in prisons due to the fact that there were not enough penitentiary establishments. However, the Government was engaged in building new penitentiary and judicial centres and had requested the support of the international community in that regard. Congo was well aware of the thousands of men, women and children who were victims of the scourge of torture worldwide and would always seek to ensure their voice was heard, he concluded.

Questions by the Experts

CLAUDIO GROSSMAN, Chairperson of the Committee, welcomed the delegation and said although the Republic of Congo’s first report was late it would help the Committee to understand the challenges faced and how it could best support the State party in complying with its commitments under the Convention. The Committee had noted legislative advances, particularly in the Criminal Code and the Criminal Procedure Code, and the reform of judicial oversight systems. The Committee welcomed Congo’s expressed intention to cooperate with all international bodies and to submit reports.

A Committee Expert welcomed the first report of Congo although the Committee regretted that it was 10 years late. He welcomed that the State party had requested the opinion of civil society for the drafting of the report and asked for the names of the non-governmental organizations consulted. He also asked about the role of the National Human Rights Commission in the prevention and combatting of torture, about its level of independence, the selection of its members and its budget. Did the Commission receive complaints about torture?

A very emblematic case related to the serious harassment of the President of the Human Rights Commission, Jean Martin Nbemba, by the police. Mr. Nbemba had only been able to escape the harassment thanks to his lawyers and was reportedly now being held under house arrest. His case not only seemed curious but also highly symbolic, said an Expert.

The legal system in Congo had lost all credibility, and overwhelmingly people had no trust in the justice system. Access to justice was severely lacking. Victims of torture, or the family members of people who had died as a result of torture, simply did not come forward to make complaints to the courts. There was widespread fear of reprisals, indeed as noted in the report. It was a highly serious and concerning situation which had to be addressed.

Regarding torture and criminal law, an Expert said the report referred to a draft bill on the prevention and punishment of torture and asked about the definition of torture in that draft bill and what its current status was. The Criminal Code included sanctions for the crime of torture but how could a person be punished for a crime which was not yet defined in law, he asked. He requested more information about legal procedures which would allow a subordinate to refuse to carry out an order to inflict an act of torture on a person without fearing punishment. Did the Government intend to abolish the death penalty from its legislation? Concerning universal jurisdiction, an Expert asked whether the Congolese justice system would try a case regarding an act of torture that was committed on the territory of Congo against a non-Congolese national.

Sexual violence in conflict was raised by an Expert who asked what the State party was doing to combat the phenomenon and whether perpetrators received impunity under the transitional justice system. She also asked if Congo had any anti-trafficking legislation.

The legal and actual periods of custody and pre-trial detention were raised by an Expert, who said custody periods were in law 72 hours with the option to extend for a further 48 hours, but in practice could be for many months. Pre-trial detention could be by law up to four months with the option to extend for a further two months, but non-governmental organizations informed the Committee that the average length was one year. Could the delegation please clarify? The rights of detainees to consult legal counsel, to inform their families of their detention and to consult an independent medical doctor were also enquired about.

Torture, violence and ill-treatment in places of detention were said to be widespread and routinely practiced by police officers, according to reports from non-governmental organizations. There were frequent reports of sexual violence among detainees. Could the delegation comment on that, and also on reports of the widespread use of secret detention facilities.

Concrete cases of impunity regarding torture and ill-treatment of Rwandan refugees and other individuals had been brought to the attention of the Committee, said an Expert, reading out their names and asking the delegation to comment. It was striking and deeply concerning that none of those cases had been prosecuted, he said.

Immediate examination by an independent medical doctor at the time of detention was a very effective measure to prevent torture, said an Expert, recommending that doctors working in the criminal justice system received training in line with the Istanbul Protocol.

In Congo the right to legal aid was only granted after a suspect had been presented before a magistrate, said an Expert, but a person deprived of their liberty should in practice enjoy their right to legal aid from the very first hour of their detention. How was the 1984 law on legal assistance implemented in practice, she asked.

Prison overcrowding in Congo was dire and contributed to widespread human rights abuses, said an Expert. Congo had 11 prisons which reportedly held 1,209 prisoners but their overall capacity was supposed to be 595 persons. The overcrowding rate was often as high as 400 per cent. There were reports of up to 65 detainees being held in a single cell, and the deaths of five detainees in 2014 in a period of 10 months due to overcrowding was recalled. Another prison was said to hold, in 2014, 240 prisoners when its capacity was only for 75 persons. Those figures were themselves dramatic, and even more so in addition to allegations of torture and ill-treatment committed by prison staff against detainees.

The Committee had received many reports from non-governmental organizations about degrading living conditions for prisoners. Detention facilities had little or no sanitation or hygiene facilities. There was widespread violence, corruption and prostitution. The underfeeding of prisoners was also a serious issue with 2012 reports stating that food rations for Pointe Noire prison were only enough for 200 persons despite it housing 304 detainees.

There were widespread reports of corruption in prisons and bribes paid by prisoners to get better living conditions or access to a judge. The law allowed for bail but in practice not many people could afford to pay bail, and so went into prison. People who could afford to pay bail and could afford a lawyer generally managed to avoid prison.

The conditions of detention were grave, said an Expert, noting that the report provided information on the building of new prison facilities, as well as on the training of staff and monitoring visits carried out by the International Committee of the Red Cross. He asked for information about the large-scale project reportedly financed by the European Union to the value of €200 million for the renovation of prisons and police cells in Brazzaville, Dolisie and Pointe Noire. The project aimed to reduce overcrowding and improve living conditions in places of detention. On 22 November 2014 the Director-General of the prisons announced that the renovated prisons in Brazzaville, Dolisie and Pointe Noire would soon be operational; could the delegation provide an update?

The Committee on the Rights of the Child had depicted a very dark situation with regard to children in places of detention and within the military, said an Expert. Child abuse was committed in prisons, police stations and other institutions. Children were reportedly detained in the same cells as convicted adults. Children were not treated as minors and it was difficult to establish what the age of responsibility was. Abandoned and unaccompanied children faced particularly serious problems.

Information about the conditions in which women prisoners were detained was requested, and whether they were separated from male prisoners. Rape and other forms of sexual violence in prisons was said to be common, with widespread impunity for the perpetrators, commented an Expert. The common sentence for rape was only two months, up to a maximum of three years. There were reportedly 260 cases of rape in prison in 2014.

An Expert asked if Congo had any policy for the reintegration and re-education of detainees to enable them to return to society after prison, and whether alternative non-custodial sentences were ever given for lesser crimes, as that would lessen prison overcrowding.

Concerning non-refoulement, the delegation was asked to provide an example of a person who had not been extradited because there were no guarantees that they would not be tortured provided by the requesting State. It was also asked whether the draft bill on asylum had been promulgated into law.

An Expert asked about reports that political and military refugees had been expelled from Congo to the Democratic Republic of Congo at great risk to their lives and with no care taken to ascertain their fate. He also asked about the violent mass expulsion of 130,000 citizens of the Democratic Republic of Congo under the pretext that they had caused the crime rate in Congo to rise. Leading figures in the United Nations had asked the Government of Congo to stop expelling Democratic Republic of Congo nationals and to carry out an investigation into alleged human rights violations by law enforcement officials. The Government subsequently removed 18 law enforcement officials from their posts and promised to launch an international enquiry; could the delegation provide an update on that?

The report stated that there were not many complaints of torture but the Committee had received very concerning information from non-governmental organizations to the contrary, said an Expert. Some 20 to 25 cases of torture alone were freely available from public sources, containing manifold detail. There were at least 10 reports of summary executions. He also referred to reports of press censorship and the repression of protests. The Expert read out a list of Congolese nationals who were alleged to have committed torture and asked the delegation to respond.

To what extent were law-enforcement and prison staff aware that torture was prohibited and had there been any assessments of the impact of training for officials? The impact of the 2007 decree which established a standing technical committee for the dissemination of international humanitarian and human rights law within the civil service was enquired about.

Congo had some very professional human rights non-governmental organizations working in the country, and could benefit greatly from their contributions, said an Expert. In particular, civil society organizations could monitor places of detention, identify challenges and make recommendations to the authorities. Did civil society organizations have the permission and support of the Government to enter places of detention? The Committee strongly recommended that they did as their involvement would be a very constructive measure to prevent the use of torture.

Early marriage was raised by an Expert who noted that while the age of marriage was 18, there was no minimum age if both sets of parents agreed to the marriage. Early marriage was identified as a form of ill-treatment or worse under the Convention, she noted. The delegation was also asked whether marital rape, female genital mutilation, sexual harassment and domestic violence were prohibited by law.

The Expert noted that a number of international treaties had been signed but not yet ratified by Congo, including the Optional Protocol to the Convention, the Convention on Enforced Disappearances and the Convention on the Rights of All Migrant Workers and Members of their Families. Had a timetable for their ratification been established? Did Congo intend to make a declaration to allow the Committee to receive communications from individuals who claimed to have been a victim of torture?

Response from the Delegation

Congo had rules of procedure governing the custody of individuals but in practice the rules were sometimes violated. Such violations included violating the time limits for pre-trial custody, a lack of information for detainees and their families at the time of detention, a lack of medical assistance, and problems of violence in detention centres, as well as the detention of children, secret places of detention, limited access by non-governmental organizations to places of detention, and prison overcrowding. Such breaches of the rules of procedure were exceptions, they were not tolerated and they were constantly criticized from the highest level of Government, emphasized a delegate. The Government constantly sought solutions to solve the problems in law and practice.

Any deviant behaviour by the police force was punished, but the delegation considered the allegations that the police force was being led by perpetrators of torture unacceptable and fully unfounded, emphasized a delegate.

Congo did not have secret detention places, confirmed a delegate. Monitoring of places of detention was carried out by police officers who were judged competent.

To remedy prison overcrowding, new prisons were being built and others were being renovated, said a delegate. He confirmed that prisons were being built in Brazzaville, Pointe Noire and Dolisie as part of the European Union-funded ‘PAREDA’ project. The improvements to the prisons were not aimed at increasing capacity but rather at improving living conditions, he added.

The age of criminal responsibility in Congo was 13 years old. A child could only be placed in custody if they were aged 15 years or older, and a child could only be questioned in the presence of a social worker. Regarding allegations that children’s rights had been violated in places of detention, the delegation requested a list of names from the Committee so it might respond to individual cases.

Sexual violence was a scourge and since the armed conflict broke out in 2000 had been used as a weapon of war, said a delegate. The Government, with support from international organizations, was determined to combat it. In particular, sexual violence impacted on young girls; it was known that some 60 per cent of victims were girls and one third were aged 13 years old or younger. The majority of perpetrators were known to the girls. Sexual violence was also prevalent in schools where 62 per cent of the perpetrators were other children and 23 per cent were teachers. Only a minority of victims of sexual violence sought the services of the judiciary. There were a number of public and private institutions which were engaged in providing services to victims, including psychological and medical care, while an awareness-raising campaign was in place to end impunity for the crime. Furthermore the Government was considering a draft law specifically on gender-based violence.

A delegate described the extradition process in Congo, which included a series of court hearings at which the defendant always had access to legal counsel. Congo did not practice extradition to States which practiced the death penalty or to States where there was a risk the individual concerned may be tortured. An example was the refusal of an extradition demand by the Democratic Republic of the Congo.

To investigate allegations of human rights abuses during the mass deportations of irregular migrants from Congo to the Democratic Republic of the Congo in 2014, the authorities had proposed setting up a joint commission of inquiry, and were currently waiting for a response to the proposal from the authorities in the Democratic Republic of the Congo.

In the absence of a law which provided specific punishments for the crime of torture, the acts of torture could be punished as ‘killing or a murder’ if the act of torture had led to a death or as ‘voluntary blows or injuries’ if the act of torture had led to wounding. Torture could also be considered an aggravating circumstance in certain situations.

The death penalty had not been applied since 1982 and Congo was a de facto abolitionist country. Reform of the Penal Code would allow for a general debate on the abolition of the penalty from the statute books.

A High Council of Judges had been established to strengthen judicial independence, following which 13 judges were struck off for misconduct and non-respect of the rights of individuals. Likewise a new statute for police officers had been created which helped bring in broad recruitment under the Programme for Demobilization, Disarmament and Reinsertion into Society of Ex-Combatants. Subsequently 18 police officers were struck off for misconduct and violating the penal codes. Thanks to technical support provided by the United States, the European Union and the African Union, Congo was working to strengthen the capacity of all judicial, police and gendarmerie officers.

Combatting trafficking in persons, particularly of women and children, was a major concern. Congo was mainly a destination country for trafficking. The phenomenon had worsened over the last decade. Regarding the impact on children, some 1,800 had been identified as victims of trafficking, mostly coming from West African countries and the Democratic Republic of the Congo. Children were mostly trafficked for the purpose of commercial sexual exploitation and exploitation for domestic and agricultural work. Congo was working hard to tackle the phenomenon in partnership with international organizations, including the United Nations Children’s Fund (UNICEF) and the United Nations Population Fund (UNFPA).

A 2010 law prohibited trafficking and provided sanctions for the crime; now, in partnership with the United Nations Office on Drugs and Crime (UNODC), the Government of Congo was taking stronger measures to prevent and punish trafficking, in particular of women and children. In 2012 it ratified the Palermo Protocol to the United Nations Convention on Organized Crime, a delegate noted.

Child marriage was prohibited under the 1984 Family Code law which set the minimum marriageable age as 18 for women and 21 for men, and allowed for exceptions for serious reasons, to be granted by a judge. Despite that law some Congolese families were marrying off their children at younger ages, as various surveys had shown over the years. A 2011 to 2012 survey showed that early and forced marriage prevaricated, and that one in ten girls were married by the age of 15 years. The practice was being tackled in three main ways: prevention, provision of assistance and empowering girls. An awareness-raising campaign on the risks of early marriage would be launched this year. A delegate noted that the Government also had assistance programmes to help women suffering from obstetric fistula as well as to reduce maternal mortality which were supported by the United Nations Population Fund (UNFPA).

The curricula of the Police and Gendarmes Academies included modules dedicated to torture, and officials also attended seminars on torture, said a delegate in response to the question about training programmes. The most recent seminar took place in Brazzaville in February 2015 and was convened by the Congolese Observatory for Human Rights. Although health professionals received general human rights training, there were no specific training programmes regarding torture and the Government would seek to remedy that in the future.

Responding to the question about whether non-governmental organizations and civil society had participated in the drafting of the report, a delegate assured the Committee that the inter-ministerial committee for drafting the report had consulted reports from non-governmental organizations such as Chrétiens pour l’Abolition de la Torture (ACAT) and L’Association pour le Droit de l’Homme et L’Univers Carcérale (ADHUC) as well as the Congolese Observatory for Human Rights (OCHD).

The Office of the Ombudsman was created in 1998 and the National Human Rights Commission of Congo was established in 2002. The Ombudsman acted as a mediator between the authorities and individuals to receive complaints and was not a substitute for the courts. The Ombudsman could propose any fair settlement of a complaint and amendments to laws. He aimed to reach an amicable settlement to disputes relating to the rights of individuals. The Ombudsman was appointed for three years and his mandate was renewable.

Regarding international human rights instruments not yet ratified, a delegate said the Government was making preparations to ratify the Convention on Enforced Disappearances and was considering ratifying the Optional Protocol to the Convention against Torture. It was also considering making a declaration with regard to the Committee against Torture’s competence to receive and examine individual communications from persons alleging to have had their rights under the Convention violated.

Follow-Up Questions from the Committee Experts

Regarding the commission of inquiry into the mass deportations of 2014 to be established between Congo and the Democratic Republic of the Congo, an Expert noted that the State party was waiting for proposals from the Democratic Republic of the Congo but asked if a work programme was already in place as if it kept waiting for responses from the other party the process risked becoming overlong and drawn out.

The delegation’s assertion that Congo did not have any secret places of detention was heard, said an Expert, but expressed confusion because following its visit to the country in 2012, the Committee on Enforced Disappearances recommended that the Government of Congo work to eradicate secret detention centres. That recommendation by an international body would suggest that evidence was found that secret places of detention did exist, said the Expert. What follow-up had been given to their recommendation?

An Expert provided the delegation with a list of names of people who he said had died as a result of torture at the hands of the police, including their nationalities and the dates of their death. He asked whether compensation was provided for torture victims and did civil society organizations have permission to monitor places of detention.

An Expert asked about 32 detainees who were alleged to be political prisoners, who had been held in custody following explosions at an arms depot in Brazzaville in March 2012. Was the President of the Human Rights Commission, Jean Martin Nbemba, still being held under house arrest, he also asked.

Congo was commended for the establishment of a medical and social centre in Brazzaville prison by an Expert who enquired whether the doctors were independent. If doctors encountered a case of torture, which judicial body were they supposed to report the case to? He also asked about the investigation procedures for death in custody.

The use of sexual violence and rape as a weapon of war in the conflict was a modern form of slavery and a serious concern, especially as it was increasingly affecting younger and younger girls. The Committee noted that large scale awareness-raising campaigns had been launched to bring an end to impunity, which was very important. It asked for more information about the draft law on gender-based violence.

Response from the Delegation

Jean Martin Nbemba, the President of the Human Rights Commission, was currently in France, confirmed a delegate. He had been taken there by the Congolese authorities for medical treatment; therefore he could not possibly be under house arrest. Furthermore, there were no political prisoners in Congo, stated a delegate. The prisoners related to the 4 March 2012 events were not political prisoners, they were terrorists, he commented, in the same way as terrorists were classified as such in European countries.

There was no torture in remand facilities, it was not possible, confirmed a delegate. The five deaths of detainees held in remand centres were due to disease. Care had to be taken not to exaggerate, said the delegate, adding that there were cases of torture and they took place in the police and gendarmerie facilities, but not in remand centres.

There were no longer any secret detention facilities in Congo, emphasized a delegate. Doctors working in remand centres were not independent; they were assigned to facilities by the Ministry of Health.

Congo was well aware of the weakness of the legal system and the problems of corruption, said a delegate, adding that the judicial structure was due for a complete overhaul because it had not been touched since independence. He noted that the European Union had provided funding for judicial reform. The timeframe for a commission of inquiry into the 2014 mass deportations was dependent upon the response from the Democratic Republic of the Congo, clarified a delegate.

The Government enjoyed fruitful cooperation with civil society organizations and received valuable information from them about human rights violations, said a delegate. Detention facilities were not closed to human rights defenders, he said, acknowledging the civil society organizations present at the meeting who he said would be aware that sometimes over-zealous civil servants caused them difficulties in gaining access, which was something that would be resolved through close cooperation.

Concluding Remarks

CLAUDIO GROSSMAN, Committee Chairperson, thanked the delegation for the interactive dialogue. He said the Committee would reflect upon the basis of the information provided to it and subsequently adopt and publicize its concluding recommendations on the report.

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