Committee against Torture reviews the report of Benin

GENEVA (3 May 2019) - The Committee against Torture this afternoon concluded its consideration of the third periodic report of Benin on measures taken to implement the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Timothee Yabit, Deputy Director of the Cabinet of Ministers of Benin, outlined the progress made since the report’s submission to the Committee.  The new Criminal Code had entered into force on 1 January 2019 and represented an embodiment of Benin’s commitment to abolishing the death penalty.  It incorporated a full definition of the crime of torture as a stand-alone crime, in line with the Convention.  The new Criminal Procedure Code of 2012, the Law on Judicial Organization of 2018, and the creation of a judge for freedoms and detention would ensure greater rights for defence and greater autonomy for investigative and prosecution bodies.  The establishment of six new courts to guarantee and facilitate access to justice and the setting up of criminal chambers in the tribunals in 2018 to expedite criminal proceedings would greatly contribute to reducing the duration of pre-trial detention.  In December 2018, the National Human Rights Committee pursuant to the Paris Principles had been set up, which also served as a national prevention mechanism and had the right to conduct unannounced visits to all places of detention.  Benin continued to pursue measures to improve the conditions of detention, including the construction of four new prisons, and had mandated the independent Penitentiary Agency of Benin with the management of prisons.  All those measures demonstrated the will of the Government of Benin to implement the Convention, the Deputy Director said, noting that much still remained to be done, including in improving material conditions of custody in police units.

In the discussion that followed, Committee Experts welcomed the 2018 law establishing the National Human Rights Committee and noted that the text did not specifically mandate this body with the functions of a national prevention mechanism.  What steps would Benin take to resolve this legal ambiguity and to respect the preventive nature of the national mechanism?  The definition of torture in the new Criminal Code did not contain the critical assumption of instigation, consent or acquiescence of a public official or any other person acting under State authority, they said, stressing that a crime of torture must not be subjected to a statute of limitations or to amnesty.  Furthermore, the definition must also include the prohibition of other cruel, inhuman, or degrading treatment or punishment.  Pre-trial detention remained an important problem as Benin seemed to resort to this measure often and rather abusively.  The Committee was particularly concerned about the detention of minors and that over 90 per cent of detained children were awaiting judgement.  Experts decried the conditions of detention and noted that Benin had the second highest rate of incarceration in West Africa which greatly contributed to the chronic problem of prison overcrowding.

In his concluding remarks, Mr. Yabit said the delegation had taken due note of the Committee’s recommendations.  He expressed hope that the Committee would be patient and support Benin’s efforts to implement them.  He recalled that Benin faced numerous challenges in meeting the obligations stemming from the Convention.

Jens Modvig, Committee Chairperson, thanked the delegation for the numerous responses it had provided as well as its constructive approach.

The delegation of Benin consisted of representatives of the Directorate for Prison Administration and Protection of Human Rights, Penitentiary Agency of Benin, Judicial Police, and the Permanent Mission of Benin to the United Nations Office at Geneva.

The Committee will issue the concluding observations on the report of Benin at the end of its sixty-sixth session on 17 May.  Those, and other documents relating to the Committee’s work, including reports submitted by States parties, will be available on the session’s webpage.  The webcast of the Committee’s public meetings can be accessed at http://webtv.un.org/.

The Committee will next meet in public at 10 a.m. on Tuesday, 7 May to consider the sixth periodic report of the United Kingdom (CAT/C/GBR/6).

Report

The Committee has before it the third periodic report of Benin (CAT/C/BEN/3).

Presentation of the Report

TIMOTHEE YABIT, Deputy Director of the Cabinet of Ministers of Benin, said that in 1992 Benin had ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adding that the third periodic report that was before the Committee had been drafted in a participative manner with a whole range of stakeholders, including non-governmental organizations and relevant United Nations agencies and organizations.  In his update to the Committee on the progress Benin had made since the submission of that report, Mr. Yabit said that in July 2012, Benin had acceded to the Second Optional Protocol to the International Covenant on Civil and Political Rights aiming to abolish the death penalty, which had been followed with the immediate commutation of the death sentence for 14 individuals.  All references to capital punishment had been removed from the new Criminal Code, which had entered into force on 1 January 2019 and which was an embodiment of the commitment to abolish the death penalty. 

The new Criminal Code had incorporated a full definition of the crime of torture as a stand-alone crime, in line with the Convention.  With the adoption of the new Criminal Procedure Code in 2012 and the new Law on Judicial Organization in 2018, as well as the creation of a judge for freedoms and detention, Benin had taken concrete steps to ensure greater rights for legal defence, and greater autonomy for investigative and prosecution bodies, and had strengthened the responsibility of the judicial administration.  Benin had established six new courts to guarantee and facilitate access to justice and had set up criminal chambers in the tribunals in 2018 to expedite criminal proceedings.  These measures would greatly contribute to reducing the duration of pre-trial detention.  The new Criminal Procedure Code clarified extradition procedures, cooperation with the International Criminal Court, and the access of independent organizations to places of detention.  In December 2018, the National Human Rights Committee pursuant to the Paris Principles had been set up, which also served as a national prevention mechanism and had the right to conduct unannounced visits to all places of detention.

In addition, Benin continued to pursue measures that aimed to improve the conditions of detention, including the construction of four new prisons, in Savalou, Abomey, Parakou, and Abomey-Calavi.  With a view to improve efficiency, the independent Penitentiary Agency of Benin had been mandated with the management of prisons, while Benin was developing a law on the penitentiary regime which would provide for the creation of a specialized body of prison agents.  The Republican Police had been created by the fusion of the police and national gendarmerie and it followed two key rules: training and discipline.  As a result, abusive detention practices had been rejected and custody registers were now standardized and kept up to date.  All those measures demonstrated the will of the Government of Benin to implement the Convention, the Deputy Director said, noting that much still remained to be done, including in improving material conditions of custody in police units.

Acting on the recommendations made to Benin by this Committee and the Sub-Committee for Prevention of Torture, Benin had taken a range of measures to strengthen the prevention of torture, and was currently studying an ambitious programme to build and rehabilitate prisons and bring them in line with international standards and so address one of the root causes of prison overpopulation.  The number of judges had grown from 73 in 2008 to 290, with 77 judges still in training, and the setting up of the National Human Rights Commission would, without doubt, accelerate the promotion and adoption of good practices at all levels of the judiciary.  As far as juvenile justice was concerned, Mr. Yabit noted that the principle of the best interest of the child, enshrined in the Children’s Code of 2015, had begun to be understood and accepted by all.  A specialized training module had been produced and disseminated among juvenile judges and personnel in the centres for minors in conflict with the law. 

Questions by the Committee Experts

ABDELWAHAB HANI, Committee Co-Rapporteur for Benin, remarked that Benin had ratified the Optional Protocol to the Convention in 2006 but no steps had been taken to implement the national prevention mechanism.  The Co-Rapporteur welcomed the law establishing the National Human Rights Committee of 2018 and noted that this text did not contain a specific provision mandating this body with the functions of a national prevention mechanism.  What steps would Benin take to resolve this legal ambiguity and to respect the preventive nature of the national mechanism?

Mr. Hani commended Benin for enshrining the protection from torture in its Constitution and welcomed the judicial activity of the Constitutional Court and several judgements in cases involving torture, including the February 2012 judgement involving charges against a brigade commander for arbitrary arrests, bodily harm, and “savage treatment”.  What was meant by “savage treatment” and what was its status in the law?

The Co-Rapporteur welcomed the criminalization of torture as a stand-alone crime in the revised Criminal Code in 2018 and remarked that the definition of torture did not contain the critical assumption of instigation, consent or acquiescence of a public official or any other person acting under State authority.  A crime of torture must not be subjected to a statute of limitations nor to amnesty, stressed Mr. Hani.  The prohibition of torture must contain a definition of torture as per article 1 of the Convention, as well as the definition and prohibition of other cruel, inhuman, or degrading treatment or punishment.

The Sub-Committee on Prevention of Torture had carried out two visits to Benin, in 2008 and in 2016, and had made a number of recommendations concerning the full implementation of the fundamental legal safeguards in practice, including through the respect for the Code of Criminal Procedure and the Nelson Mandela Rules.  Concern had been raised about the right to a legal counsel and access to a lawyer, since most lawyers seemed to be concentrated in the capital.  Also, the right to a medical examination did not seem to be systematically implemented in practice, and a number of detainees had not been allowed to contact their family and relatives.  Prison registers did not seem to be managed properly and some had altered or torn pages, which might indicate an attempt to change the reality and facts.  This was a very serious shortcoming.

What was the situation of prisoners who were serving their sentences in Benin’s prisons based on the request of the International Criminal Tribunal for Rwanda?  The Committee was concerned about the use of solitary confinement and other disciplinary measures for those prisoners.  

Pre-trial detention seemed to be the rule rather than the exception.  The Sub-Committee on Prevention of Torture had found some 40 children in Cotonou prison and among them several had spent a very long time in pre-trial detention.  This was illegal, the Co-Rapporteur stressed and asked the delegation to provide data on pre-trial detainees and steps taken to address the gaps in the implementation of the law.  Civil society organizations were authorised to carry out monitoring visits to places of detention, but the carrying out of the visits was hampered by a number of obstacles and restrictions.  For example, the civil society organizations had to renew their authorization and permits every three months.

The cooperation agreement Benin had with the United States, under which Benin agreed not to transfer United States nationals to the International Criminal Court for prosecution for crimes against humanity and international crimes, was contrary to the provisions of the Convention, stressed the Co-Rapporteur.

The Committee was very concerned about the prosecution and killing of children deemed to be “sorcerers” under traditional beliefs, which in some instances seemed to amount to infanticide.  Mr. Hani stressed the responsibility of Benin to protect these children.

HONGHONG ZHANG, Committee Co-Rapporteur for Benin, remarked that the third periodic report of Benin was rather poor on data and statistics, making it hard for the Committee to assess the progress.  Could the delegation inform on training provided to law enforcement officials, the penitentiary staff, and the judiciary on the prevention of torture, namely its content and how it incorporated the Istanbul Protocol, Tokyo Rules, Bangkok Rules, and Mandela Rules.

Pre-trial detention remained an important problem as the State party seemed to resort to this measure often and rather abusively.  The maximum length of pre-trial detention was five years for serious crimes and three years for infractions, but in reality, for a significant proportion of detainees, time spent in pre-trial detention was longer than the sentences they received.  In March 2019, 60 per cent of the 1,129 detainees in the Abomay prison were pre-trial detainees.  The Committee was particularly concerned about the high number of children in pre-trial detention; some children were detained for months and even years, and almost all the detained children (between 90 and 99 per cent) were awaiting judgement.  A recent visit to Cotonou prison by a non-governmental organization had found that of the 41 detained children, only four were actually serving a sentence.

Ms. Zhang raised a number of concerns related to conditions of detention.  Zambia had the second highest rate of incarceration in West Africa, which greatly contributed to the chronic problem of prison overcrowding.  The quantity and quality of food provided to inmates was deplorable in all the prisons in the country, and there were occasions when inmates had been fed only once a day – including detained children - due to a delay in the payment of food suppliers.  The poor hygiene conditions, lack of access to clean water and proper toilets, and inadequate health care and services contributed to poor health, and even deaths, among the inmates.  What steps was Benin taking to guarantee that the conditions of detention conformed to international and regional standards?

The Committee was greatly concerned about the inhuman and degrading conditions in which minors were detained, including violence against children in police stations.  A number of children stated that they had been handcuffed and beaten by the police, and most questioning took place without a lawyer present, which opened up the space for brutality and coerced confessions.  The age of criminal responsibility was 13 years, and despite recommendations by a number of human rights bodies, Benin had not yet taken steps to apply international standards in this regard.

The delegation was asked to outline the complaint mechanisms for torture and ill treatment and provide data on the number of complaints received, police inquiries opened, as well as on the prosecutions and sentencing.  What measures were in place to protect witnesses?

Turning to the question of impunity for acts of torture and ill treatment, the Co-Rapporteur recalled that the Committee had already requested Benin to set up a truth commission to look into the allegations of torture committed during the 1972-1990 period, repeal the 1999 amnesty law, and ensure that there was no impunity for torture.  Could the delegation update the Committee on the steps taken on these issues?

The 2015 Children’s Code prohibited infanticide, including ritual infanticide, however, the killing of “sorcerer children” was still being practiced in the north of the country with seemingly full impunity.  There were cases of child abduction and kidnapping, and several mutilated corpses of disappeared children had been found, with their organs missing, but it seemed that these cases had not been investigated or prosecuted.  The Committee remained concerned about wide-spread child labour and child marriages, and the trafficking or exploitation of children under the guise of vidomégons, a traditional practice under which parents allow their children to live and work for richer relatives.  Children placed in couvents vadous for traditional and religious reasons were at risk of ill treatment and being deprived of education, particularly girls.

Other Experts raised questions concerning sexual violence in schools and sexual exploitation of children in couvents vadous, as well as allegations of sexual violence by the police, and in this context asked the delegation to provide data and statistics on the measures taken to address those issues.  The Experts took positive note of the new law against child trafficking and asked the delegation to inform on cases in which individuals had been prosecuted for and convicted of child trafficking.  Marriage by abduction, whereby a girl would be abducted, raped and married by the perpetrator, used to be widespread in rural areas, but civil society organizations had raised concerns that this practice continued and was concealed by the communities.

Replies by the Delegation
TIMOTHEE YABIT, Deputy Director of the Cabinet of Ministers of Benin, said the delegation was pleased at the opportunity to take part in the dialogue.  He thanked the Committee Experts for their questions as well as civil society organizations for their interest in Benin.

Concerning the delay in setting up the national prevention mechanism, which Benin regretted, this was now a thing of the past.  The law setting up the National Human Rights Committee covered the tasks of the national preventive mechanism.  The key mission of the National Human Rights Committee was to ensure the implementation of the provisions of the international instruments that Benin was a party to, including the Committee against Torture.  Benin believed that this was sufficient to allow the National Human Rights Committee to carry out the duties of the national prevention mechanism. 

Citizens could bring cases directly to the Constitutional Court, in which case the competent authorities and the relevant magistrates could do the following: annul the relevant procedural acts affected by this case; provide reparations for the violations; or hand down criminal sanctions against the perpetrators.  When violations were carried out by officials, administrative sanctions could be levied.  This was how the Constitutional Court ruled concerning custody and detention.

Regarding “savage or harsh treatment”, Mr. Yabit said that it was not a legal concept.  The Constitutional Court used plaintiffs’ words - hence the quotation marks.  On the jurisprudence and statistics department, it was not abolished but it faced difficulties in meeting expectations due to human and material shortages, so it was difficult for the delegation to provide the requested statistics for the Committee.
On the criminalization of torture in the new Criminal Code, Mr. Yabit said that there were some shortcomings regarding the Criminal Code’s reference to torture.  As soon as possible, the Government would ask Parliament to amend the Criminal Code to explicitly address cases where a person committed torture at the request or with the consent of a civil servant.  In Benin, torture was clearly a crime, clearly established in the Criminal Code, and punished by harsh punishments of five to 10 years’ imprisonment.  Furthermore, the Constitution established disobedience as a duty in a situation where carrying out the order would lead to the violation of fundamental rights.

On the Nelson Mandela Rules, access to a lawyer was guaranteed as soon as the preliminary investigation was launched.  Minutes would become null and void if a person’s right to legal counsel was not respected.  However, outside of urban centres, the lack of legal counsel nearby could make it difficult for an individual to enjoy this right.  The Government was aware of this problem.  While the State could not intervene in the legal counsel recruitment process, it would encourage the order of attorneys to take bold measures to facilitate access to legal counsel.

Turning to access to a doctor, it was a legally guaranteed by law, said Mr. Yabit, adding that this right was scrupulously respected by police units.  The police reminded the defendant of his rights in that regard and it was recorded in the minutes.  Doctors had to be chosen by the person who had been accused.  In Benin, all doctors took an oath of office testifying to their independence.  The obligation to provide information to parents was strictly observed.  The family often came in to offer financial assistance to the accused.  Custody was under the oversight of the Prosecutor of the Republic, who was also responsible for extensions.  The eight-day timeframe for custody was in everyone’s interest as it allowed for thorough investigations.  It gave the victim time to calm down before facing the prosecutor. 

The Government was currently putting in place a centralized digitized registry.  A pilot phase was ongoing in Cotonou, Porto-Novo and Parakou.  Regarding prison registries, training sessions had been held for prison staff.  There was a uniform system in place, which included registries with numbered pages.  There was also a health and death registry system pertaining to the court and the infirmary.  
Pursuant to an agreement entered into by Benin with the International Criminal Court, a prison was set up with Beninese public funds, whereby 17 Rwandans inmates were housed in the country.  Their imprisonment conditions complied with criteria established by the United Nations, which also provided oversight via its specialized agencies.

In reaction to the discrimination that took place in the Cotonou Prison, measures had been taken to put an end to the corruption that had led to inequalities.  A census of the inmates per building had been conducted.  This had led to an equitable distribution of inmates in the facilities.  The provisions of decree 72-293 were not in step with the provisions of the Nelson Mandela Rules: for instance, solitary confinement was not subject to judicial review.  A draft bill was being examined to address these shortcomings.  Efforts were also being made to renovate solitary confinement cells.  The Ministry of Justice oversaw this practice, which was on the decline.

While it was true that pre-trial detentions were too long, their average length had gone down to 17.27 months in 2017 from 21.76 months in 2016 and 30 months in 2015.  The investigative and sentencing judges had to step up efforts with regards cases related to people in pre-trial detention, Mr. Yabit said.  Too often, the identification and location of alleged perpetrators of crimes remained random, as a lot of people did not have a fixed or permanent job which would facilitate their identification.  In that context, detention was considered as a mean of ensuring access to the accused or appeasing victims’ anger, he explained.

There were two categories of stakeholders that were active in prisons.  There were those who were able to visit prisons as per international conventions, such as Amnesty International, which visited the Cotonou Prison on 1 April 2019 for instance.  There were also associations that considered themselves partners of the penitentiary administration, and purported to organize activities for the benefit of inmates.  The latter type of activities required in-depth verifications that warranted the restrictions imposed by the Government.  

Five courts supporting children were in place and benefitted from the help of the United Nations Children’s Fund.  This mechanism aimed to effectively implement domestic and international norms related to the protection of children.  In addition, 164 cases of violence against children had led to sentences being handed down against perpetrators.  There was no tolerance of violence against children in Benin; the Government sought, through its criminal policy, to strictly enforce laws related to such violence, notably when it had a sexual component.  Mr. Yabit assured that male minor inmates were separated from adults.  There was however no specific infrastructure for female minor inmates, as there were very few of them—no more than 13 in all of Benin.

Pursuant to the Beninese Constitution, which firmly prohibited torture, the risk of being subjected to torture could be invoked to deny a request for extradition.  On asylum seekers, the Government did not have a deportation policy.  Expulsion remained an administrative or judicial sanction which resulted from a foreigner’s violation of national laws or regulations.

While acknowledging that overcrowding was an issue in prisons, Mr. Yabit said efforts were deployed to improve inmates’ living conditions.  If ill, inmates had access to healthcare services free of charge at the prison infirmary, which also offered basic medication.  A study ordered by the Ministry of Justice had shown that the illness rate in prisons was inferior to that of the population in general.
Questions by Committee Experts
ABDELWAHAB HANI, Committee Co-Rapporteur for Benin, asked for clarifications on the aftermath of demonstrations that had recently taken place in Benin.  He recalled the importance of respecting the rights of human rights defenders and peaceful demonstrators, amongst others.  Regarding the study on inmates’ health, he pointed out that there were children suffering from malaria.  Could the delegation provide more information on that issue?  He also reiterated his request for information on Benin’s amnesty laws.  The delegation had not replied to the Committee’s questions on the Children’s Code.  The Optional Protocol had been ratified by Benin, and while the State had some room to manoeuver, there had to be a formal procedure of appointment and a protection of the national prevention mechanism’s mandate and ability to visit detentions centres, he stated.   He expressed hope that the Government would open the Pandora’s box of crimes that took place between 1972 and 1990, to address them.

On access to doctors, with whom did the responsibility to ensure access to healthcare during custody fall, he asked.  On solitary confinement, the Committee expected Benin to adopt new rules.  Could the delegation provide information on the renewal rates related to corruption charges and the removal of air-conditioning systems, which the Government should make more widespread rather than uninstall?  Did the Government have any figures on administrative expulsions that could be shared with the Committee?

HONGHONG ZHANG, Committee Co-Rapporteur for Benin, said while some responses were encouraging, others had not been as satisfactory.  But on the whole, the delegation had been candid, she said, thanking its members.  With respect to custody questioning, there were provisions but no specific training programmes.  Were there methods in place to assess the effectiveness of measures against torture and contributing to its prevention?  She requested more information about the educational programmes on human rights which the Government intended to roll out.  

The Co-Rapporteur said that judges seemed to use pre-trial detention as the preferred method, whereas it should be a last-resort measure.  Efforts should be made to reduce the length of pre-trial detention.  Could the delegation submit figures on the inmate population, she asked, pointing out that the State party had shown difficulties in providing data to the Committee.  Noting that the delegation had been honest about the overcrowding problems, she stressed that much remained to be done in that regard.  She asked about the implementation decree pursuant to the Children’s Code. 

Other Experts asked if there needed to be a legal sentence for civil compensation to be provided to victims.  

ABDELWAHAB HANI, Committee Co-Rapporteur for Benin, enquired about the staggering figures on ritual infanticides.  On the agreement between Benin and the United States, the Committee had not received an answer.  Did Benin intend to include non-refoulement and the universal jurisdiction referred to in article 8 in its domestic laws?

HONGHONG ZHANG, Committee Co-Rapporteur for Benin, while acknowledging that there were criminal legal rules on the violence against children, said information was still lacking on the measures in place by the State.  She asked for information on the disappearances of children in the northern part of the country and the prosecution of those responsible for those crimes. 

Replies by the Delegation
TIMOTHEE YABIT, Deputy Director of the Cabinet of Ministers of Benin, responding to the questions on the protests, said that in some regions they had made voting impossible.  And yet, there had been no civil victims because the rules of engagement had been clear: Government forces were not to use force.  Protestors had looted buildings, set administrative vehicles on fire and thrown Molotov cocktails: these were not peaceful demonstrations.  

On the judicial map, links between courts and prisons were satisfactory.  Measures had been adopted to ensure that issues relating to transport of detainees no longer arose.  Turning to the national prevention mechanism, another delegate said Benin sought to have a single institution with various mandates.  A process was underway to provide the National Human Rights Committee with adequate resources.

Pointing out that the Government had concluded an agreement with the Bar Association on the proper use of legal aid, he expressed hope that this accord would allow the establishment of an improved mechanism.  While he was unable to provide a timeline for the implementation of these changes, he assured the Committee that the provision of legal aid was an absolute necessity in the Government’s opinion. 

Regarding healthcare costs incurred during custody, he said they were dealt with directly with the detainee who had requested the healthcare services.  If the detainee’s health suddenly deteriorated and required a transfer to a hospital, the cost was borne by the State. 

The amnesty law was one of the bases of the “Republican Pact” in Benin.  The rule of law in Benin came about as a result of this amnesty law, he recalled.  There were no plans to review it; it was considered an achievement in the country.  There were mechanisms to compensate victims of torture and other atrocities during the revolution.  The delegation did not have figures at hand, however.

On the training for law enforcement officials, another delegate said courses were imparted to ensure proper understanding of human rights as well as the way in which they were defended.  When specific training was needed, academics and experts from Benin and other countries were invited. 

The agreement with the United States was bilateral and would not undergo any revisions, stated another delegate.  Due note was taken of the Committee’s recommendations on this matter and the non-refoulement issue.

Mr. Yabit said that disciplinary proceedings were underway in relation to corruption charges as measures had been promptly taken by the hierarchy of the penitentiary facility.

Concluding Remarks

TIMOTHEE YABIT, Deputy Director of the Cabinet of Ministers of Benin, said the delegation had taken due note of the Committee’s recommendations.  He expressed hope that the Committee would be patient and support Benin’s efforts to implement these recommendations.  He recalled that Benin faced numerous challenges in meeting the obligations stemming from the Convention.

JENS MODVIG, Committee Chairperson, thanked the delegation for the responses provided and its constructive approach.

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