Experts of the Committee on Enforced Disappearances Express Appreciation for the Czech Republic’s Implementation of the Convention, and Ask about the Definition of a Victim and Protections for Asylum-Seekers

The Committee on Enforced Disappearances today concluded its consideration of the initial report of the Czech Republic on how it implements the provisions of the International Convention on the Protection of All Persons from Enforced Disappearance, with Committee Experts asking about the country’s definition of a victim of enforced disappearance, and about its protections against possible enforced disappearance for asylum seekers, in cases of deportation. 

Committee Experts asked if the Czech Republic had plans to broaden the definition of a victim so it would align with the provisions of article 24 of the Convention?  Was a victim of enforced disappearance obliged to initiate criminal proceedings to be considered a victim, or was the act of victimisation itself enough to consider a person to be victim of enforced disappearance?  Committee Experts also asked what were the concrete procedures at the border points for foreigners who might request protection under the risk of being subject to enforced disappearance if they were returned?  Who took their request, and was there translation offered in a language they would understand as well as legal assistance, if needed?  Were police officers trained to identify the people in need of protection?  Did lodging an asylum application have a suspending effect on a deportation decision for a person who might claim to be at risk of enforced disappearance?  

Jakub Machačka, Head of the Secretariat of the Government Council for Human Rights at the Office of the Government of the Czech Republic, and head of the delegation, presenting the report, said that enforced disappearance had not been a problem in the State in its recent history.  As no acts of enforced disappearance had been documented, there had not been a need to establish a specific law on enforced disappearance.  However, there were provisions within criminal legislation that prohibited enforced disappearance.  The principle of non-refoulement was respected.  The Czech Republic was committed to upholding its obligations under the Convention. 

In response to questions, the delegation explained that with regard to the definition of victim of enforced disappearance in the Czech Republic, it was considered that it was in line with the Convention.  It corresponded to the definition applied in the European Union countries and included relatives of the disappeared person.  However, a victim could not bring a case to court, as that was the responsibility of the prosecutor.  The policy and practice of the Czech Republic on non-refoulement was in line with international instruments, including Article 3 of the European Convention on Human Rights.  There were no exceptions to that protection and all were entitled to it.  On the other hand, the Czech Republic could at times refuse an asylum application because of the applicant's past, for example if they had committed a serious crime.  The rejected person could not, however, be sent back to their country of origin if they were at risk of ill-treatment or enforced disappearance.  

In closing remarks, Mr. Machačka said the delegation would reflect on the question of enforced disappearance itself, namely its definition and whether to incorporate it in the Czech legal order or not.  The situation in Ukraine and cases of Ukrainian refugees were presenting the Czech Republic with new challenges.  The Czech Republic would continue to implement the Convention and collaborate with the Committee.

Carmen Rosa Villa Quintana, Committee Chair, thanked the delegation for their presentation and participation in the constructive dialogue, urging the country to share with other States that had not yet ratified the Convention the advantages of doing so.  The Committee was ready to assist and work with all States parties, as well as with victims of enforced disappearances and civil society actors in order to together eradicate and prevent enforced disappearances.

The delegation of the Czech Republic was composed of representatives of the Council for Human Rights at the Office of the Government of the Czech Republic; the Internal Control Authority of the Presidium of the Czech Police Force; and the Permanent Mission of the Czech Republic to the United Nations Office at Geneva.

All documents related to the twenty-third session of the Committee can be found here. Meeting summaries of its public meetings can be found here. The webcast of the Committee’s public meetings can be accessed at http://webtv.un.org/
The Committee will next meet in public at 3 p.m. on Thursday, 15 September, to hold a dialogue with Uruguay (CED/C/URY/AI/1).

Report

The Committee has before it the initial report of the Czech Republic (CED/C/CZE/1).

Presentation of the Report

JAKUB MACHAČKA, Head of the Secretariat of the Government Council for Human Rights at the Office of the Government of the Czech Republic, and head of the delegation, presented the report, saying that enforced disappearance had not been a problem in the State in its recent history.  Czech Republic had become a member of the European Union and ratified all major human rights treaties.  Those treaties protected citizens against enforced disappearance, and the Czech Republic’s Charter of Fundamental Rights and Freedoms similarly provided protections.  The Charter prohibited torture and other cruel and degrading treatment.  Under the Charter, any detained person was required to be brought before the courts within three days.  The Charter also provided protections for detainees. 

As no acts of enforced disappearance had been documented, there had not been a need to establish a specific law on enforced disappearance.  However, there were provisions within criminal legislation that prohibited enforced disappearance.  Forced labour and crimes of torture were also prohibited, and sanctions for extrajudicial crimes that could not be tried elsewhere were provided.  Czech authorities were required to investigate all reported crimes, and cooperated internationally to prosecute international crimes.  The principle of non-refoulement was respected. 

Any detention contrary to defined standards was illegal.  Detainees could lodge appeals at any time, and grounds for detention were reviewed regularly.  Relatives were immediately informed about detention.  Detention was not an administrative sanction.  Decisions on involuntary hospitalisation were valid for a year, and could be challenged by detainees and relatives.  The State provided necessary assistance to persons in courts.  Records were kept on all detention cases by the authorities.  Information could be provided on detention cases on request.  Courts kept records of involuntary hospitalisations.  Breaches of the rules of detention were considered as crimes.  Crime victims were able to access assistance services and police protection.  Secret and illegal adoptions were punished as a form of trafficking.

The Czech Republic was committed to upholding its obligations under the Convention. 

Questions by Committee Experts

MILICA KOLAKOVIC-BOJOVIC, Committee Expert and Country Co-Rapporteur, said that the steps that the Czech Republic had taken to implement the Convention were well appreciated by the Committee.  However, civil society organisations had not been involved in the preparation of the report.  Was there a mechanism to ensure the involvement of civil society in monitoring public policies protecting human rights?  Courts were not yet able to invoke the Convention.  Were there examples of courts directly implementing other international treaties?  What took precedence when national legislation was at odds with international treaties?

What were the findings of an analysis of the national human rights institute, and what steps had been taken to address its shortcomings?

Did the case management system allow for the collection of disaggregated data on court cases?  Which legislation prohibited enforced disappearance in states of emergency and war?  There was no clear distinction within legislation regarding crimes committed by organizations and by natural persons.  Did the State party intend to incorporate legislation that specifically addressed enforced disappearance and was in line with the Convention?  Did the State party intend to amend criminal legislation to provide adequate punishments for crimes of enforced disappearance?  What provisions of the criminal code punished accomplices as well as direct perpetrators?  What minimum and maximum penalties were provided for those who committed enforced disappearances?

SUELA JANINA, Committee Expert and Country Co-Rapporteur, said that information provided on the statute of limitations was not clear.  In cases of enforced disappearance, what was the statute of limitations?  Did that change when the crime was classified as a crime against humanity?  When did the statute of limitations start for different crimes?  Which crimes against humanity had a statute of limitations?  Czech legislation appeared to cover all elements of article 9, paragraph 1 of the Convention. 

Anyone could file a criminal complaint, but submissions were disregarded if not given in the form specified by the State.  Were complaints filed in incorrect formats investigated informally?

If members of armed forces were involved in alleged cases of enforced disappearance, in which jurisdiction would that be judged?  Was the military police a judicial body?  What was the role of the General Inspector of security forces?  Were there any extradition treaties that had been signed by the State since ratifying the Convention, and did such treaties address enforced disappearance?  Was there any legislation that impeded cooperation between States parties?

Responses by the Delegation 

JAKUB MACHAČKA, Head of the Secretariat of the Government Council for Human Rights at the Office of the Government of the Czech Republic, and head of the delegation, said that there was a robust framework connecting Government with civil society in the Czech Republic.  Joint councils of public authorities and civil society organizations regularly met to address human rights issues.  There was no council dealing specifically with enforced disappearance, however there was one dealing with issues of torture that could address enforced disappearance. 

The Public Defender of Rights held mandates as national preventative mechanisms relating to torture and the rights of persons with disabilities.  The State was working to transform that body into a national human rights institute. 

International conventions prevailed over national legislation, but the State aimed to conform national legislation with international conventions.  The Constitutional Court addressed international conventions and mentioned their articles in its findings.

There were issues with data collection in the State, partially due to persons refusing to disclose personal data.  The State was working to build trust with the population to encourage citizens to provide their data, and to improve data collection methods. 

The Crisis Act specified rights that could be derogated in states of emergency.  However, acts of torture were not permitted in states of emergency.  General rules regarding statutes of limitations were included in the general criminal code.  The code also defined the criminal liability of State actors, organizations and natural persons.  Soldiers had the same criminal liability as civilians and were tried in civil courts.  The military police force was an authority that investigated issues relating to military personnel.  

The delegation said that the criminal code punished indirect participation in crimes, and accomplices were liable for crimes along with direct perpetrators.  Serious crimes such as murder, sexual violence, acts of terrorism and torture were “crimes against humanity” and could be punished with up to life imprisonment.  Discrimination based on religion or ethnicity was an aggravating circumstance, as were crimes committed to gain personal benefit and crimes committed by organized groups.  The length of the statute of limitations was determined based on the seriousness of the crime.  All crimes against humanity had no statutes of limitations. 

Victims could not initiate criminal proceedings, but courts could provide compensation to victims.  Anyone could submit a criminal complaint at any time, and even if the complaints were not submitted in the required form, authorities were required to investigate.  Rules of criminal procedure were in place to eliminate bias, and border forces and judicial officials were investigated to ensure that they were not making biased judgements. 

Enforced disappearance was not regarded as a political crime and thus extradition was not limited on those grounds.  The Czech Republic prosecuted crimes committed extraterritorially and extradited offenders in serious cases if extradition would not put the person involved at risk.  

Follow-Up Questions by Committee Experts

MILICA KOLAKOVIC-BOJOVIC, Committee Expert and Country Co-Rapporteur, asked if the Government was obliged to involve joint State-civil councils in the preparation of reports submitted to treaty bodies.  How were members of those councils appointed?

Was there any difference between the practice of first instance and appeal courts and the Constitutional Court?  Was there an electronic case management system that could generate reports for reviewing court practices?

SUELA JANINA, Committee Expert and Country Co-Rapporteur, said that it was positive that military officials were tried in civilian courts, and that complaints were investigated informally when filed in the incorrect format.

The lack of criminalisation of enforced disappearance led to a lack of clarity regarding the statute of limitation in such crimes.  Under the Convention, State parties were obliged to adopt legislation prohibiting enforced disappearance.  Enforced disappearance needed to be included as a crime against humanity.  The Committee would prefer not to have statutes of limitations, but if States insisted on implementing them, the statute of limitations for enforced disappearance needed to be long enough to reflect the seriousness of the crime.  What happened if perpetrators of enforced disappearance were found in the Czech Republic who were nationals of a State that did not criminalise enforced disappearance?  Did the principle of double criminality apply?

What was the framework under which the General Inspectorate of Security Forces worked?  What safeguards were in place to ensure that its judgements could not be influenced by external parties?

A Committee Expert asked about the rights of victims who chose to intervene in proceedings that had been initiated by prosecutors, and those of victims who chose not to be involved in proceedings.  How was the two-year term of limitation enforced regarding civil suits?    

Responses by the Delegation 

JAKUB MACHAČKA, Head of the Secretariat of the Government Council for Human Rights at the Office of the Government of the Czech Republic, and head of the delegation, said that the State was working to include civil society in the development of all policies and laws.  The Government was not obliged to involve civil society in such proceedings, but did so in practice.  The Government was trying to involve civil society in the preparation of State reports for treaty bodies, but was not always able to incorporate them due to time limitations.  Alternative reports were a better reflection of the voice of civil society.

Lower courts such as the first instance and appeals courts were theoretically able to apply international conventions, but rarely dealt with cases that involved international norms.

The judiciary and the police recorded data on criminal cases, however there was a need to make data systems more interconnected and to make records of cases more detailed.

“Attacks against humanity” were defined in legislation as “any serious restrictions of liberty, including enforced disappearance.”  There was no legislation on enforced disappearance, but the State was trying to implement legislation that prohibited acts that constituted enforced disappearance.

If a foreign national who committed enforced disappearance in another State was tried in the Czech Republic, the Czech Republic judiciary would investigate whether the act was criminalised under any laws in the State where the act took place.

The public prosecutor brought cases to courts based on evidence presented by the police.  Complaints regarding bias demonstrated by the public prosecutor or the judicial system could be submitted to superior courts.  Victims could lodge appeals regarding the provision of compensation.  If victims chose not to participate in criminal proceedings, they could receive information about proceedings, but could not receive compensation unless they subsequently brought their case to civil court. 

Questions by Committee Experts

SUELA JANINA, Committee Expert and Country Co-Rapporteur, asked about the issue of non-refoulement.  Was enforced disappearance explicitly mentioned in the Act on the Residence of Foreign Nationals and Section 91 of the Act on International Judicial Cooperation in Criminal Matters?  Was there any condition under those acts under which the protection from refoulement was not offered by the Czech authorities?

What were the concrete procedures at the border points for foreigners who might request protection under the risk of being subject to enforced disappearance if they were returned?  Who took their request, and was there translation offered in a language they would understand as well as legal assistance, if needed?  Were police officers trained to identify the people in need of protection?  Did lodging an asylum application have a suspending effect on a deportation decision for a person who might claim to be at risk of enforced disappearance?  On diplomatic assurances, was there follow-up of the situation of individuals who had been extradited if there were doubts around their risk of torture or inhumane treatment?

Did detainees have the right to meet with their lawyers from the outset of their deprivation of liberty?  In a case of suspected enforced disappearance, would any person with a legitimate interest be entitled to take proceedings before a court?  Did official registers of persons deprived of liberty include all elements mentioned in article 17 of the Convention?  How were those registers maintained, updated and monitored?  Was there any coordination among authorities such as the Prosecutor's Office, Ministry of Justice, Ministry of Interior and Ombudsman on the outcomes of their visits in the places of deprivation of liberty?

According to the information provided so far, there was no specific training on the Convention.  Would it be included in the future curricula under the general training on human rights for civil and military law enforcement personnel, medical personnel and public officials including prosecutors, judges and police officers in border checkpoints?  Were there plans to include the Convention as part of the curriculum for training for civilian and uniformed personnel? 

MILICA KOLAKOVIC-BOJOVIC, Committee Expert and Country Co-Rapporteur, mentioned that it seemed as if the definition of a victim as indicated in the report did not conform to that of the Convention.  Were there plans to broaden the definition so it would align with the provisions of article 24 of the Convention?  Was a victim of enforced disappearance obliged to initiate criminal proceedings to be considered a victim, or was the act of victimisation itself enough to consider a person to be victim of enforced disappearance? 

On the right to compensation and other reparative measures, could a victim get compensation in a separate, civil procedure in cases when they failed to claim it in criminal proceedings?  If so, was there a statute of limitation for such a claim, and for how long?  How long did it take to get compensation in such a procedure?  Could the delegation provide some examples of the average amount of compensation awarded?  Was a claim in civil proceedings preconditioned by an indictment in criminal procedure?  How long did it take to get support, and were there limits in terms of the amount that could be awarded?  Were there other reparative measures than monetary compensation?

Was there a nationwide victim support service?  If so, was it maintained by the institutions of the State or by non-governmental organizations?  What kind of support was available?  Was the support available only while the criminal procedure was ongoing, or on a long-term basis?

Could the delegation describe the procedure of issuing a declaration of absence? Who was entitled to request it?  Who was in charge of issuing it?  How long did that procedure take?  When it came to a declaration of death, did it affect the obligation of State authorities to search for the disappeared person?  If so, could the family members stop that procedure and request the search to be continued? 

Responses by the Delegation 

JAKUB MACHAČKA, Head of the Secretariat of the Government Council for Human Rights at the Office of the Government of the Czech Republic, and head of the delegation, responded to questions about the responsibility of State actors explaining that they could be subject to aggravating circumstances because of their status.  But there were neither special courts for them, nor military courts.  A soldier who committed a crime would be tried in the same way as an ordinary person and tried in an ordinary court.

The policy and practice of the Czech Republic on non-refoulement was in line with international instruments, including Article 3 of the European Convention on Human Rights.  There were no exceptions to that protection and all were entitled to it.  On the other hand, the Czech Republic could at times refuse an asylum application because of the applicant's past, for example if they had committed a serious crime.  The rejected person could not, however, be sent back to their country of origin if they were at risk of ill-treatment or enforced disappearance.  They also had 60 days to apply in another country, and 90 days to lodge an appeal, which had a suspensive effect.  The list of so-called "safe countries" was the same one as that of the European Union.

With regard to the definition of victim of enforced disappearance in the Czech Republic, it was considered that it was in line with the Convention.  It corresponded to the definition applied in the European Union countries and included relatives of the disappeared person.  However, a victim could not bring a case to court, as that was the responsibility of the prosecutor.  In practice, there were no deadlines for initiating criminal proceedings, although the general principle was that they should be initiated "as soon as possible." 

Questions by Committee Experts

SUELA JANINA, Committee Expert and Country Co-Rapporteur, noted that there were no elements of enforced disappearance included in the Czech Republic’s legal framework.  The elements of torture and inhumane treatment might cover it, but the future asylum act could include enforced disappearances as one of the elements for which the authorities might apply the principle of non-refoulement.  On training, what was being done to raise more awareness of the Convention?

MILICA KOLAKOVIC-BOJOVIC, Committee Expert and Country Co-Rapporteur, asked about police detention: Could the delegation confirm that decisions could indeed not be appealed?  Were there differences between procedural rights for a person detained by police and a person detained following a court decision?  On victims’ rights, were there focal points in a position to inform victims on their rights and refer them to victim support services?  What about the territorial allocation of victim support services?  Were those services in various cities more or less unified in terms of services available as well as in terms of standardisation of services available to victims?  What happened in situations where a crime was committed but the offender could not be held accountable due to mental illness, for instance?

Responses by the Delegation 

JAKUB MACHAČKA, Head of the Secretariat of the Government Council for Human Rights at the Office of the Government of the Czech Republic, and head of the delegation, explained that police custody was not a sanction but a preventive measure.  It could not last longer than two days and was not subject to judicial review.  There were nine reasons why a person may be placed in police custody, including if they were a danger to themselves or others; if the person was subject to protective measures; if they were to be detained; or if they were at risk of re-offending.  Practice was more flexible than the law when it came to family visits, he added, and every effort was made to maintain more regular contact between the detainee and their family.  Moreover, family members could appeal on behalf of the detainee, and challenge their length of detention.  

As regards compensation for victims, there was no longer a monetary ceiling.  The amount was set at the discretion of the judge.  The Supreme Court, through a directive, prohibited the past practice of low compensation.  The directive also provided guidance to judges in assessing the amount.  Compensation could also be claimed from the State if the perpetrator could not make reparations for the crime.  A declaration of death or its absence was the exclusive responsibility of the courts, which could be seized up to five years after the facts.  The courts did not have a time limit for declarations, but it usually happened quickly. 

Closing Statements

JAKUB MACHAČKA, Head of the Secretariat of the Government Council for Human Rights at the Office of the Government of the Czech Republic, and head of the delegation, reflecting on the dialogue, reiterated that enforced disappearance in itself was not a significant problem in the Czech Republic.  However, there were other issues connected to the Convention that needed to be addressed, including rules on detention facilities, and the rights of those who were close to a person who was detained.  Those were important issues that the delegation would reflect on and work on, as per their international commitments.  Civil society’s involvement in cases had also been mentioned.  The delegation would also reflect on the question of enforced disappearance itself, namely its definition and whether to incorporate it in the Czech legal order or not.  The situation in Ukraine and cases of Ukrainian refugees were presenting the Czech Republic with new challenges.  Mr. Machačka thanked the Committee Members for their questions.  The Czech Republic would continue to implement the Convention and collaborate with the Committee.

CARMEN ROSA VILLA QUINTANA, Committee Chair, thanked the delegation for their presentation and participation in the constructive dialogue, urging the country to share with other States that had not yet ratified the Convention the advantages of doing so.  The Committee would prepare its Concluding Observations, after which there would be a follow-up procedure and a procedure for requesting additional information under Article 29(4) of the Convention.  Those exchanges should be conceived as a space for cooperation as they shared a common goal, which was to ensure the implementation of the Convention in the Czech Republic and worldwide. The Committee was ready to assist and work with all States parties, as well as with victims of enforced disappearances and civil society actors in order to together eradicate and prevent enforced disappearances.

 

Link: https://www.ungeneva.org/en/news-media/meeting-summary/2022/09/experts-committee-enforced-disappearances-express-appreciation

 

___________

 

Produced by the United Nations Information Service in Geneva for use of the information media;
not an official record. English and French versions of our releases are different as they are the product of two separate coverage teams that work independently.