WORKING GROUP ON ARBITRARY DETENTION VISITED ANGOLA

The Chairperson-Rapporteur of the Working Group on Arbitraty Detention of the United Nations Human Rights Council, Leila Zerrougui, issued the following statement on 27 September 2007 at the conclusion of a visit to Angola.

Ladies and Gentlemen:

Good afternoon,

The United Nations Working Group on Arbitrary Detention has just concluded its visit to the Republic of Angola upon an invitation from the Government. The Working Group belongs to the Special Procedures of the United Nations Human Rights Council and Angola is the third African country the Working Group has visited since its creation by the former Commission on Human Rights in 1992. The Working Group visited the Republic of South Africa in 2005 and just concluded an official mission to Equatorial Guinea in July 2007. In some 15 years of existence the Working Group has also carried out fact-finding missions to Argentina, Australia, Bahrain, Belarus, Bhutan, Canada, China, Ecuador, Honduras, Indonesia, Iran, Latvia, Mexico, Norway, Nepal, Nicaragua, Peru, Romania, Turkey, the United Kingdom and Viet Nam.

The delegation visiting Angola was headed by the Chairperson-Rapporteur of the Working Group, Ms. Leïla Zerrougui (Algeria), and composed of its member, Mr. Seyed Mohammad Hashemi (Islamic Republic of Iran), members of the Working Group’s Secretariat and the country desk officer for Angola from the Office of the High Commissioner for Human Rights in Geneva, and two interpreters.

The Working Group conducted its official mission from 17 until 27 September in the capital Luanda, and in the cities of Cabinda (Cabinda Province) and Dundo (Lunda Norte Province). It held meetings with the following authorities in Luanda: the Vice-Minister for Foreign Affairs, the Vice-Minister of the Interior, the Vice-Minister of Justice, the Prosecutor-General, the President of the Supreme Court, the Angolan Ombudsman (“Provedor de Justiça”), prison directors and representatives of the correctional services, the Provincial Police Commander and the Director of the Directorate of Criminal Investigation (DNIC), and other authorities. In Cabinda the Working Group could meet with the Provincial Governor, the President and judges of the Provincial Court and Public Prosecutors, the Provincial Delegate of the Ministry of the Interior and of the Ministry of Justice, the Provincial Military Commander, the Military Prosecutor, the Director of the Directorate of Provincial Criminal Investigation (DPIC), the Director of the Military Judicial Police, the Director of the Provincial Prison, the Director of Immigration Services, and other authorities. In Dundo the Working Group held meetings with the Provincial Governor of Lunda Norte, the President of the Provincial Court and Public Prosecutors, the Provincial Delegate of the Ministry of the Interior, the Director of the Directorate of Provincial Criminal Investigation (DPIC), the Director of Immigration Services, and other authorities. The Working Group further met with the President of the Angolan Bar Association, with representatives of the civil society in the three cities, the diplomatic community and representatives of United Nations agencies in Luanda.

As is standard practice the Working Group also visited various detention facilities where persons are deprived of their liberty, including Viana Prison, Cacuaco Central Prison, and the holding cells of DNIC in Luanda. In Cabinda the Working Group visited the holding cells of DPIC and of a Police Station, the transit centre for immigrants and two prisons. In Dundo it visited the Provincial Prison at Condueji, the detention centre of DPIC, and the detention centre for immigrants. The Working Group conducted private interviews with around 400 detainees.

During its visit the Working Group enjoyed the cooperation of the Government. The Working Group could visit all detention facilities it had requested, with two notable exceptions. In Cabinda Province the delegation was informed by the Military Commander in Cabinda that he had not received the necessary authorisation by the Ministry of Defence to grant access to the military prison in the province.

The visit to Viana Immigration Detention Centre, scheduled as the last topic on the agenda of the Working Group’s mission before the de-briefing with the Government, could not take place. Its Director informed the Working Group that he had not received the necessary visit authorisation by the Ministry of the Interior. This is particularly disturbing for the Working Group in view of the meeting with the Vice-Minister of the Interior yesterday where the visit was discussed and the Working Group received assurances that there will be no obstacles. The Working Group would like to recommend to the Government an inspection visit of Viana Immigration Detention Centre conducted jointly by the United Nations Human Rights Office and the Office of the United Nations High Commissioner for Refugees as soon as possible. According to the information received 30 women, five children and around 250 men are currently detained there in bad conditions. A number of them have been detained for up to three years. The Working Group was also informed that detainees requested to talk to the delegation, a request that was denied.

Apart from this the Working Group was granted access to all detainees it had chosen at random and could conduct private interviews with them. However, it received reliable information that detainees at DPIC and the Police Station in Cabinda had been transferred to other locations shortly before the Working Group’s visit.

The Working Group would like to express its gratitude to the Government for its cooperation. It would also like to express its thanks to the United Nations Human Rights Office in Angola for facilitating the visit of the Working Group. We also wish to thank the civil society representatives we met for their assistance to the Working Group’s visit and fact finding.

The mandate of the Working Group is confined to evaluate the domestic legal framework and the process leading to deprivation of liberty and to satisfy itself that those deprived of their liberty enjoy all applicable legal guarantees. These have to be tested against international norms Angola has subscribed to, in particular the provisions of the International Covenant on Civil and Political Rights. The Working Group, however, does not only analyse the legal norms as they appear in the books, but also in what way they are applied in practice.

According to its methods of work the Working Group considers deprivation of liberty to be arbitrary if either of the following criteria is fulfilled:

First, if there is no legal basis for detention to be found, whatsoever. This is the case when officials carry out or order arrests beyond their scope of competence. The same goes for situations when detainees are not released from custody after the expiry of certain time limits for detention during the investigation or trial phase or after completing a prison term. Another example is maintaining detention notwithstanding an act of amnesty or pardon.

The second category refers to situations in which the person concerned is arrested and detained because she or he peacefully exercised specific human rights entrenched in the Universal Declaration of Human Rights or in the International Covenant on Civil and Political Rights, for example, the right to freedom of opinion and expression, the right to freedom of assembly, the right to take part in the public affairs of the country, or the right to freedom of religion and belief.

The third category covers cases in which the violation of the right to fair trial is of such grave nature as to confer upon the imprisonment of the person concerned an arbitrary character, for example violations of the right to defence or admittance of forced confessions as evidence.

Drawing on its longstanding experience the Working Group has been able to identify three main root causes that could inform the phenomenon of arbitrary detention. They are: The general context of a country with its specific problems and achievements, the legislative and institutional framework governing deprivation of liberty, as well as the lack of efficient remedies and impunity.

After 27 years of civil war since independence Angola has finally found its peace in 2002, although the legacy of the war is still visible. Pressing social needs on all levels of society compete with the necessity of reforming the system of administration of justice. However, thanks to the natural resources in the country the Angolan Government is able to dispose of sufficient financial means to implement legal and institutional reform. Development goes hand in hand with human rights protection and promotion.

The Working Group has been informed that the Angolan Government has initiated a process of comprehensive justice reform showing a commitment to improve the situation concerning deprivation of liberty. The Working Group considers its invitation as a sign of the Government’s willingness to introduce change. However, the Working Group would like to stress that in order for the ongoing reform to be effective it is necessary that the legislative process is transparent so that interested circles can participate and stakeholders concerned are involved.

Angola has just become a member of the United Nations Human Rights Council, which is a sign of cooperation with international mechanisms. The Government recently invited other mandate holders of the Special Procedures of the Human Rights Council, which will visit Angola still during the course of this year. Angola has also ratified some of the core international human rights instruments, such as the International Covenant on Civil and Political Rights and its Optional Protocol. The Office of the High Commissioner for Human Rights has a country office in Angola. Its technical cooperation programme also includes a contribution to the justice reform process.

The Government makes efforts to put functioning courts into place in all municipalities and to increase the number of prosecutors throughout the country. Institutional reform also resulted in the creation of the Office of the Ombudsman (“Provedor de Justiça”), a function which had formerly been carried out by the Prosecutor-General. After his visit to Cacuaco Prison in Luanda together with a Supreme Court Justice he achieved the release of some 200 prisoners who had been illegally detained. The visit programmes to police stations conducted by the Angolan Bar Association and to prisons by the Standing Committee on Human Rights (9th Commission) of the National Assembly are also important tools to prevent arbitrary detention. Another positive aspect the Working Group would like to highlight is the training programmes for the police on respect for human rights and rule of law carried out in cooperation with the United Nations.

The Government has further started to address the sometimes appalling conditions of detention. Viana Prison outside Luanda and Cabinda Prison have been built. DNIC in Luanda will receive new premises and a new prison in Dundo is currently under construction. It will replace the old prison which is situated in a former warehouse.

Despite all efforts the present institutional and legal framework governing the aspect of deprivation of liberty is still flawed. Strong institutions are necessary for an effective system of administration of justice to function. Their competencies must be clearly defined, their powers delimitated from and balanced against each other and the independence of the judiciary guaranteed. A legal framework has to be in place that makes these institutions accessible and their functioning transparent. To this end the State also has to provide appropriate financial means and it is crucial that the mentality of authorities involved is changed, if necessary, so that they are being sensitised for upholding the rule of law and the protection of human rights.

In the Angolan context these goals are far from having been achieved. Legislation and institutions are inherited from colonial times. Reforms introduced after independence were generally inspired by the communist system. These laws are not always in compliance with the requirements of international human rights instruments the Republic of Angola has subscribed to or even with the Angolan Constitution.

The current system of criminal justice is dominated by the Ministry of the Interior, which has the police and the penitentiary service under its authority. In this system judges play a weak role, since they are not involved in the control of the lawfulness of detention or any other measures taken during the criminal investigation.

Detention in itself is not illegal and is possible in any legal system in the world. However, there also has to be an efficient mechanism in place to assess the legality of detention so that persons arbitrarily arrested and detained are able to obtain an effective remedy. The experience made by the Working Group shows that this is not the case in Angola. Detention is legalised by prosecutors who are magistrates, which is in conformity with the International Covenant on Civil and Political Rights. However, the Working Group is concerned by the fact that the detention order of the prosecutor cannot be challenged in court during the investigation phase. Judges are involved at a very late stage of the proceedings when the trial commences. Only the Prosecutor-General is competent to quash the detention order of the prosecutor. Since the prosecution has an interest in keeping the accused in custody decisions to that effect are hardly overturned. The habeas corpus procedure before the Supreme Court is cumbersome and ineffective. As far as is apparent it has been used only twice and no decision on the merits was taken.

According to Angolan law persons arrested on suspicion of having committed an offence must be presented to a prosecutor no later than 24 hours after the arrest. The Working Group has received information that this rule is virtually never adhered to. The law further provides that the initial interrogation after the arrest must be conducted by the public prosecutor in the presence of a lawyer. The Working Group, however, took note of the fact that it is a common phenomenon that police investigators are the first to interrogate the suspect and they do so in the absence of a prosecutor or a lawyer. The majority of municipalities does not even have prosecutors or lawyers so that the police bears the sole responsibility for the criminal investigation.

The right to access to a lawyer and a corresponding legal aid system as guaranteed by the Constitution exists only in theory. Legal assistance is only available during the trial stage and sometimes the accused do not enjoy the benefit of a defence counsel at all. Due to a serious shortage of qualified defence lawyers, especially in the provinces, tribunals appoint court clerks, civil servants, and even prison officers or policemen as public defenders. In the view of the Working Group the majority of these persons are not able to act in the interest of the accused. It would like to stress that this situation needs to be urgently addressed by at least establishing guidelines for their selection and criteria for performing their function, because almost all defendants in detention cannot afford their own lawyer and have to rely on this inefficient legal aid system.

Only 14 out of 165 municipalities have municipal courts and there is still a shortage of qualified judges in the country despite the efforts of the Government. This adds to a large backlog of criminal cases. The Working Group has further received reliable information that police officers frequently sit on the bench as assessors. In such circumstances it is difficult to ensure a fair trial, compliance with the prescribed time limits when the defendant is in detention, and conformity with Article 14 of the International Covenant on Civil in Political Rights, which requires that the accused has to be tried within reasonable time or released.

There is no Appellate Court in Angola. All cases reach the Supreme Court which is at the same time a court of appeal and of review. Pending its establishment the Supreme Court has also to assume the functions of a Constitutional Court. The Supreme Court is further competent in civil and administrative matters, for habeas corpus procedures as court of first and last instance, and also functions as an electoral court. With a small number of judges it is not able to effectively deal with all matters that fall within its sphere of competence. Appeals have thus limited prospect of success. Moreover, convicts who were in preventive detention are discouraged to appeal if they have received a suspended sentence, since they are obliged to remain in detention pending the decision on appeal. The Working Group concludes that there is still no effective system in place which can prevent instances of arbitrary detention from occurring.

Another issue of concern is the situation of minors, who are criminally liable from the age of 16 according to Angolan law. However, there is no special regime for juvenile delinquents between 16 and 18. They are treated like adults during the criminal proceedings, and merely receive a lighter sentence than an adult with a possible maximum sentence of eight years of imprisonment. Minors are regularly detained together with adults at police stations and prisons. The Working Group has further received credible information that, although not criminally liable, minors below the age of 16 could be subjected to the same procedure and end up in jail, which amounts to arbitrary detention without legal basis according to the categories applicable to the consideration of cases of arbitrary detention already described. The Working Group was informed by the authorities that in case of doubt the burden of proof regarding their age lies with the minors not with the State.

Even within this already deficient institutional and legal framework abuses occur and those who are affected by them have no complaint procedures available to obtain an effective remedy. For example, (i) the Angolan armed forces enjoy no competence to arrest and detain civilians. However, the Working Group has received credible allegations in Cabinda that civilians are or were detained incommunicado at military institutions and never produced before a judge. It would like to stress that secret detention puts the persons concerned at risk of ill-treatment, disappearance and other serious human rights violations. (ii) The Working Group is concerned by allegations it has received about torture and other forms of ill-treatment to extract confessions during the crucial early stage of the proceedings. A number of detainees at Cacuaco Prison and also at Viana Prison showed visible signs of torture. (iii) Judging from the interviews conducted there is a perception of widespread corruption within the administration of justice system and particularly amongst police and prison authorities. The Working Group has been informed that the release of persons wrongfully detained and the prompt handling of investigation proceedings, particularly in Luanda, often depend on bribes rather than on following legal procedure. Such conduct is facilitated by improper detention registries that do not contain all information required for a swift and effective control of arrival, transfer or release of inmates, and the occupancy of the detention facility. (iv) According to credible information received perpetrators of ill-treatment and abuses remain unpunished.

Prisoners are facing harsh condition in prisons and other detention facilities. They are staying in overcrowded cells for most of the day without engaging in activities. Food and water supply is a serious problem, because prison authorities suffer from budgetary constraints. The conditions in the holdings cells of DNIC, at Cacuaco Prison in Luanda and in the Provincial Prison in Condueji in the Province of Lunda Norte are alarming.

Cacuaco Prison was designed for a capacity of 600 prisoners. At the time of the visit by the Working Group it held almost 3300 detainees, most of whom have to sleep on the floor and even there have difficulties to find enough space to lie down. The Working Group was informed that necessary transfers for urgent medical treatment to São Paulo Prison Hospital are carried out only at the last minute.

At the Provincial Prison in Condueji about three times as many detainees have to share one overheated cell with 48 sleeping places and the Working Group observed obvious signs of starvation amongst the most vulnerable group of prisoners. One detainee was obviously in need for psychiatric treatment which cannot be provided at the Prison. Sexual abuse of the female detainees was reported.

Ladies and Gentlemen these are our first impressions and some issues of concern. We are at your disposal to answer any questions you may have.

Thank you for your attention.

Portuguese version