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COMMITTEE AGAINST TORTURE CONCLUDES FORTY-FIRST SESSION
02 décembre 2008
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Committee against Torture
ROUND-UP
21 November 2008
Issues Concluding Observations on Reports of Lithuania, Serbia, Kazakhstan,
China, Montenegro, Belgium and Kenya
The Committee against Torture today concluded its forty-first session, issuing its concluding observations and recommendations on reports from Lithuania, Serbia, Kazakhstan, China (including the Macao and Hong Kong Special Administrative Regions), Montenegro, Belgium and Kenya, which it reviewed during the session. It also held a brief meeting to discuss follow-up to its concluding observations.
Those countries are among the 147 States parties to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and are bound by the terms of the treaty to submit periodic reports on efforts to ensure that such human rights violations do not occur on their territories. In addition to submitting the reports, the countries sent delegations before the Committee of 10 independent Experts to answer questions.
In its concluding observations on the report of Lithuania, the Committee noted with satisfaction the adoption of the Code of Conduct of Officers of the Prison Department and the 2004 Code of Ethics for Lithuanian Police Officials. Reports of prolonged pre-trial and administrative detentions remained a concern, as did reports of ill-treatment and discrimination against ethnic minorities, especially Roma, including by law enforcement officials. Lithuania was recommended to allocate sufficient resources to ensure the effective implementation of the Strategy on the Reduction of Violence against Women.
Regarding Serbia, the Committee welcomed the adoption of a new Constitution, which came into force in 2006, and which provided that no one could be subjected to torture. Among principal concerns was the lack of an independent and external oversight mechanism for alleged unlawful acts committed by the police. It was recommended that Serbia investigate reports of torture or cruel, inhuman or degrading treatment or punishment of persons with disability in institutions.
Among positive aspects in Kazakhstan, the Committee welcomed the recent ratification of a number of international instruments, including the Optional Protocol to the Convention against Torture. A concern was consistent allegations concerning the frequent use of torture and ill-treatment, including the threat of sexual abuse and rape, committed by law enforcement officers, often to extract “voluntary confessions”. As a matter of priority, Kazakhstan should pursue its efforts to reform the Procuracy so as to reduce the procurator’s dominating role throughout the judicial process and secure a fairer balance between the respective roles of the prosecutor, the defence counsel and the judge.
With regard to China, the Committee welcomed the adoption of administrative regulations prohibiting the use of torture to obtain confessions and the introduction of audio and video recording in interrogation rooms. The Committee identified three over-arching problems standing in the way of ensuring safeguards necessary for the prevention of torture: the 1988 Law on the Preservation of State Secrets; the reported harassment of lawyers and human rights defenders; and the abuses carried out by unaccountable "thugs" against specific defenders. Among recommendations were that China ensure that all persons who were detained or arrested in the aftermath of the March 2008 events in the Tibetan Autonomous Region had prompt access to an independent lawyer and independent medical care and the right to lodge complaints in a confidential atmosphere, free from reprisal or harassment.
Specifically on the Macao Special Administrative Region of China, the Committee welcomed the creation of the Commission for Disciplinary Control of the Security Forces and Services of Macao. Concerns included a lack of special training programmes for health professionals aiming at identifying and documenting cases of torture and providing rehabilitation for victims and that children as young as 12 could potentially be subjected to solitary confinement for up to one month. The Committee recommended that Macao increase protection, including recovery and reintegration, to trafficked persons, especially women and children.
Regarding the Hong Kong Special Administrative Region, the Committee welcomed the enactment of the Independent Police Complaints Council Ordinance in 2008 and the new Guidelines on Searching of Detained Persons. The Committee was concerned that there was still no legal regime governing asylum and establishing a fair and efficient refugee status determination procedure. It recommended that Hong Kong continue to take steps to establish a fully independent mechanism mandated to receive and investigate complaints on police misconduct.
With respect to Montenegro, the Committee welcomed the adoption of the Law on Protection of Rights of Mental Health Patients and the establishment of the Council for the Protection of Rights of Mental Health Patients in 2006. It was concerned that the legal status of a large number of “displaced persons” from Croatia and Bosnia Herzegovina and “internally displaced persons” from Kosovo had not yet been regularized. The Committee recommended that Montenegro expedite its investigation of war crimes, and ensure that all perpetrators were brought to justice.
With reference to Belgium, the Committee welcomed the adoption of minimal standards for places of detention and the requirement to keep a chronological log of detentions. It was seriously concerned about the insufficient guarantee for minors to a lawyer or other guardian during initial interrogations by the police. Concern was expressed at the lack of sufficient inspections in prisons, as well as the unsuitable or dilapidated condition of the buildings, and an increase in inter-prisoner violence.
Among welcome developments in Kenya were the closing of the infamous Nyayo House torture chambers and the recent establishment of the Police Oversight Board. The Committee noted with deep concern the numerous and consistent allegations of widespread use of torture and ill-treatment of suspects in police custody. Regarding reports of disproportionate use of force and widespread torture by members of the police during the 2007-2008 post-election violence, including gang rape, and the allegations of mass arrests, persecution, torture and unlawful killings by the military in the Mount Elgon region in March 2008, the Committee requested Kenya to take immediate action to ensure prompt, impartial and effective investigations and to ensure that victims were adequately compensated.
In addition to reviewing country reports in public session, the Committee considered in private meetings information appearing to contain well-founded indications that torture was being systematically practiced in the territories of some States parties. It also examined communications from individuals claiming to be victims of violations by States parties of the provisions of the Convention. Such communications are accepted only if they concern the 62 States that have declared the Committee competent to receive complaints under article 22 of the Convention.
Also at this session, on 18 November, the Committee held a meeting with the Subcommittee on Prevention of Torture in which it discussed areas of collaboration between the two bodies. In a similar vein, on the morning of 20 November, the Committee held an interactive dialogue with Manfred Nowak, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, to discuss synergies with the work of that mandate and the work of the Committee.
This afternoon, the Committee discussed follow-up to its concluding observations, hearing an oral presentation by Committee Expert Fernando Mariño Menendez on the status of follow-up for the United States, where he noted various exchanges of letters and "good faith" responses by the United States. He underscored that the dialogue was ongoing.
The Committee’s next session will be held from 27 April to 15 May 2009, during which it is scheduled to examine reports from Chad, Chile, Honduras, Israel, New Zealand, Nicaragua and the Philippines.
Conclusions and Recommendations on Country Reports
Lithuania
Having considered the second periodic report of Lithuania, the Committee noted with satisfaction the ongoing efforts at the State level to reform Lithuanian legislation, policies and procedures in order to ensure better protection of human rights. In particular, the Committee noted the Law on Equal Treatment and its 2007 Amendment, implementing the principle of equal treatment between persons irrespective of racial or ethnic origin; the Code of Conduct of Officers of the Prison Department and the 2004 Code of Ethics for Lithuanian Police Officials; the 2007 Concept of the Probation System in Lithuania and its implementation plan; the Mental Health Strategy approved by the Seimas (Parliament) on 3 April 2007; and the adoption by the Government on 18 June 2008 of the State Mental Health Strategy Implementation Programme for 2008-2010.
Among principal concerns of the Committee was that the crime of torture as defined in the Convention had not been incorporated in domestic law and might in some cases be subject to a statute of limitations. On asylum-seekers, the Committee was concerned that there was no mechanism in place to identify possible victims of torture or ill-treatment. A further concern was that all asylum-seekers, including single women or women with children, and traumatized asylum-seekers, were accommodated in the same building. Also with regard to foreigners, the Committee noted with concern that the principle of non-refoulement did not apply with respect to an alien who constituted a threat to national security or had been convicted of a serious crime and constituted a threat to the public. Further concerns of the Committee were reports of prolonged pre-trial detention and administrative detention, of both minors and adults. The Committee recommended that Lithuania take appropriate measures to further reduce the duration of detention in custody and detention before charges were brought, and develop and implement alternatives to deprivation of liberty, including probation, mediation, community service or suspended sentences. Further concerns were expressed on the unsuitable infrastructures and unhygienic living conditions in some prisons and Pre-Trial Wards, as well as the occurrence of inter-prisoner violence and lack of statistical data in that area.
The Committee was concerned at reports of ill-treatment and discrimination against ethnic minorities, especially Roma, including information indicating that instances of ill-treatment by law enforcement officials were often directed at persons belonging to ethnic minorities. Lithuania should ensure prompt, impartial and thorough investigations into all such acts and prosecute and punish perpetrators with appropriate penalties, as well as ensure adequate training and instructions for law enforcement bodies and sensitization of the judiciary. Given the high prevalence of violence against women and children, including domestic violence, the Committee regretted the absence of a definition of domestic violence in national legislation and the fact that the number of crisis centres was insufficient. The Committee called upon Lithuania to allocate sufficient financial resources to ensure the effective implementation of the State Strategy on the Reduction of Violence against Women and to closely monitor the results achieved, as well as to adopt a specific type of criminal offence for domestic violence.
Serbia
Following its examination of the initial report of Serbia, the Committee welcomed the many legislative changes, including the adoption of a new Constitution, which came into force in 2006, and which provided that no one could be subjected to torture; the law establishing the War Crimes Chamber, adopted in 2003; the Criminal Code, which defined and criminalized torture, adopted in 2005; and the Law on Asylum, which established the principle of prohibition of non-refoulement, which had entered into force in 2008. The Committee also welcomed the ratification, in 2006, of the Optional Protocol to the Convention against Torture and the ratification, in 2002 and 2003, respectively, of the Optional Protocols to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography and on the involvement of children in armed conflict.
Among principal concerns, the Committee remained concerned at the lack of an independent and external oversight mechanism for alleged unlawful acts committed by the police. Other concerns included that, in practice, the police did not respect the right of a detainee to access a lawyer of his or her own choice, to access an examination by an independent doctor within 24 hours of detention, and the right to contact his or her family; the absence of adequate protocols for the medical profession on how to report on findings of torture in a systematic and independent manner; and the slowness of investigations and the fact that officials were not suspended during the investigations into allegations of torture or ill-treatment. Serbia should, among others, suspend persons who had allegedly committed acts of torture during the investigation of such allegations; ensure that education and training of all law enforcement personnel was conducted on a regular basis; and strengthen efforts to implement a gender-sensitive approach for the training of those involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment.
The Committee noted Serbia’s acknowledgement that poor and inadequate treatment took place in some institutions and remained concerned at reports of the treatment of children and adults with mental or physical disability, especially at the forceful internment and long-term restraint used in institutions that amounted to torture or cruel, inhuman and degrading treatment or punishment in social protection institutions for persons with mental disability and psychiatric hospitals. Furthermore, it was concerned that no investigation seemed to have been initiated with respect to treatment of persons with disability in institutions. Serbia should initiate social reforms and alternative community-based support systems in parallel with the ongoing process of de-institutionalization of persons with disability, and strengthen professional trainings in both social protection institutions for persons with mental disability and psychiatric hospitals; and investigate reports of torture or cruel, inhuman or degrading treatment or punishment of persons with disability in institutions.
Kazakhstan
Among positive aspects in the second periodic report of Kazakhstan, the Committee welcomed the recent ratification by Kazakhstan of a number of international instruments, including the Optional Protocol to the Convention against Torture and the International Covenant on Civil and Political Rights and the signature of the first optional protocol in 2007. It further welcomed a number of legislative measures including the definition of torture and cruel treatment in the Criminal Code; the amendment of the Code of Criminal Procedure making statements obtained through the use of torture inadmissible as evidence; and amendments in 2003 making trafficking in human beings an offence under the Criminal Code. Also noted with satisfaction were the establishment of the Office of the Human Rights Commissioner (Ombudsman) in 2002; the creation of a Central Public Monitoring Commission in 2005 and Regional Independent Public Monitoring Commissions in 2004 with the authority to inspect detention facilities; and the amendment of the Criminal Code to introduce life imprisonment instead of capital punishment.
The Committee was concerned about consistent allegations concerning the frequent use of torture and ill-treatment, including the threat of sexual abuse and rape, committed by law enforcement officers, often to extract “voluntary confessions”. The Committee noted with particular concern reports that the National Security Committee had used counter-terrorism operations to target vulnerable groups or groups perceived as a threat to national and regional security, such as asylum-seekers and members or suspected members of banned Islamic groups. Of deep concern were allegations that torture and ill-treatment of suspects commonly took place during the period between apprehension and the formal registration of detainees at the police station. In particular, there was a failure to acknowledge and record the actual time of apprehension of a detainee and restricted access to lawyers and independent doctors. Kazakhstan should amend the Code of Criminal Procedure so as to ensure that no exceptional circumstances could be invoked for postponing the exercise of the right of a detainee to inform a relative of his/her whereabouts. The Committee was particularly concerned at allegations of forcible return of asylum-seekers from Uzbekistan and from China and the unknown conditions, treatment and whereabouts of persons returned following their arrival in the receiving country.
Among others, the Committee recommended that Kazakhstan ensure that all instances of death in custody – which had remained persistently high – were promptly, impartially and effectively investigated and that those found responsible were prosecuted. As preliminary examinations of reports and complaints of torture and ill-treatment by police officers were undertaken by the Department of Internal Security, which was under the same chain of command as the regular police force, the Committee recommended that Kazakhstan adopt measures to ensure in practice prompt, impartial and effective investigations into all allegations of torture and ill-treatment and that such investigations should be undertaken by a fully independent body. Kazakhstan should also, as a matter of priority, pursue its efforts to reform the Procuracy so as to reduce the procurator’s dominating role throughout the judicial process and secure a fairer balance between the respective roles of the prosecutor, the defence counsel and the judge.
China
Having reviewed the fourth periodic report of China, the Committee welcomed the ongoing reform of China's legal framework with the adoption of the 2001 Marriage Law explicitly prohibiting domestic violence; the 2007 amended Law on Lawyers guaranteeing lawyers’ right to meet with criminal suspects; and the 2005 Law on Administrative Punishments for Public Order and Security which required that security organs adhere to principles of respect for human rights guarantees. The Committee also welcomed the adoption of administrative regulations prohibiting the use of torture to obtain confessions, the provision of nationwide training of the police and the introduction of audio and video recording in interrogation rooms. The Committee noted with interest that China had invited and received a visit from the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment in November-December 2005 and that China had also received the Working Group on Arbitrary Detention twice.
The Committee was deeply concerned about the continued allegations of routine and widespread use of torture and ill-treatment of suspects in police custody, especially to extract confessions. Furthermore, it noted with concern the lack of legal safeguards for detainees, including failure to bring detainees promptly before a judge; prolonged police detention without charge for up to 37 days or longer; absence of systematic registration of all detainees; restricted access to lawyers and independent doctors; and the lack of an effective independent monitoring mechanism on the situation of detainees. As a matter of urgency, China should take immediate steps to prevent acts of torture and ill-treatment throughout the country, in particular, through implementation of effective measures to ensure that all detained suspects were afforded all fundamental legal safeguards during their detention. A further concern was the extended use of all forms of administrative detention, including “Re-education through Labour”, for individuals who had never had their case tried in court, nor had the possibility of challenging their detention, as well as by allegations that secret detention facilities, including the so-called “black jails”, were used to detain petitioners. Detention in such facilities constituted per se disappearance.
The Committee identified three over-arching problems, which, collectively, stood in the way of ensuring the legal safeguards that the Committee generally recommended to all States parties to the Convention as necessary for the prevention of torture: the 1988 Law on the Preservation of State Secrets in the People’s Republic of China; the reported harassment of lawyers and human rights defenders; and the abuses carried out by unaccountable "thugs" who used physical violence against specific defenders but enjoy de facto immunity. Among the Committee's recommendations were that China should conduct a full and impartial investigation into the suppression of the Democracy movement in Beijing in June 1989. China should also ensure that all persons who were detained or arrested in the aftermath of the March 2008 events in the Tibetan Autonomous Region had prompt access to an independent lawyer and independent medical care and the right to lodge complaints in a confidential atmosphere, free from reprisal or harassment. Furthermore, it should adopt all necessary measures to prohibit and prevent enforced disappearances, to shed light on the fate of missing persons, including Genden Choekyi Nyima, and prosecute and punish perpetrators. China should conduct investigations or inquests into the deaths, including in custody, of persons killed in the March 2008 events in the Tibetan Autonomous Region. Finally, China should immediately conduct or commission an independent investigation of the claims that some Falun Gong practitioners had been subjected to torture and used for organ transplants and take measures, as appropriate, to ensure that those responsible for such abuses were prosecuted and punished.
Macao Special Administrative Region of China
Among positive aspects in the report of the Macao Special Administrative Region of China, included as part of the fourth periodic report of China, were the new Law 6/2008 on the Fight Against Trafficking in Persons, which defined and criminalized trafficking in accordance with international standards; Law 1/2004, establishing the Legal Framework on the Recognition and Loss of Refugee Status, which set up a Commission for Refugees to assess asylum claims in cooperation with the UN Refugee Agency; and the creation, in 2005, of the Commission for Disciplinary Control of the Security Forces and Services of Macao, which had the mandate to consider complaints by individuals.
Noting the difference between the crimes provided for by the Criminal Code in articles 234 (torture) and 236 (serious torture), the Committee was concerned that that distinction might lead to the perception that there were more and less serious crimes of torture, a distinction which not only was wrong but could create obstacles to effective prosecution of all cases of torture. Further concerns included a lack of special training programmes for health professionals aiming at identifying and documenting cases of torture and providing rehabilitation for the victims; that children as young as 12 could potentially be subjected to solitary confinement for up to one month; and the incidence of trafficking in Macao, notably in women and children, especially for the purpose of sexual exploitation.
The Committee recommended that Macao should investigate all cases of trafficking and strengthen its efforts to prosecute and punish the perpetrators; increase protection, including recovery and reintegration, to trafficked persons, especially women and children; and should strengthen cooperation with the authorities of countries from or to which individuals were trafficked in order to combat that practice.
Hong Kong Special Administrative Region of China
With regard to the report of the Hong Kong Special Administrative Region of China, included as part of the fourth periodic report of China, the Committee welcomed the Hong Kong Bill of Rights Ordinance (Cap. 383), which incorporated into Hong Kong law the provisions of the International Covenant on Civil and Political Rights; the enactment of the Independent Police Complaints Council Ordinance on 12 July 2008; the new Guidelines on Searching of Detained Persons introduced and applied by the Police since 1 July 2008, aimed at ensuring that searches were conducted respecting the privacy and dignity of individuals; and the measures taken to tackle domestic violence, including the strengthening of services to assist victims and the passing of the Domestic Violence (Amendment) Bill in June 2008.
The Committee was still concerned that there was still no legal regime governing asylum and establishing a fair and efficient refugee status determination procedure, and that there were no plans to extend to Hong Kong the 1951 UN Convention relating to the Status of Refugees and its 1967 Protocol. The Committee recommended, among others, that Hong Kong incorporate the provisions contained in article 3 of the Convention (non-refoulement) under the Crimes (Torture) Ordinance; that it consider adopting a legal regime on asylum establishing a comprehensive and effective procedure to examine the merits of each individual case; and that it ensure protection, including recovery and reintegration, to trafficked persons, especially women and children, who should be treated as victims and not criminalized.
Moreover, concerned at the allegations of routine police abuses of persons during prostitution-related operations, the Committee recommended that the Hong Kong authorities thoroughly investigate all allegations of abuses committed during police operations in the context of such offences which, if substantiated, should be appropriately prosecuted and punished. It should also continue to take steps to establish a fully independent mechanism mandated to receive and investigate complaints on police misconduct.
Montenegro
Following its examination of the initial report of Montenegro, the Committee welcomed the adoption of the following: the new Constitution in 2007, which defined torture; the Law on Protection of Rights of Mental Health Patients, as well as the establishment of the Committee on Ethics and the Council for the Protection of Rights of Mental Health Patients in 2006; the Asylum Law in July 2006; the Strategy for the Reform of the Judiciary for the period 2007–2012; and the Code of Police Ethics in January 2006. Also welcome was the ratification of the Rome Statute of the International Criminal Court in 2006.
The Committee was concerned that, in practice, detainees were not always afforded the right to access a lawyer, an independent doctor, and to contact a relative from the outset of deprivation of liberty in Montenegro. The Committee was also concerned that the Ombudsman, established in 2003, had not been able to conduct regular visits to places of detention and that the independence of that institution was not fully ensured. A further concern was reports that juveniles in conflict with the law were often treated under the same laws and procedures applicable to adults, that they were held for long periods in pre-trial detention and shared open spaces with adult detainees.
The Committee was also concerned that Montenegro had not yet regularized the legal status of a large number of “displaced persons” from Croatia and Bosnia Herzegovina and “internally displaced persons” from Kosovo. Montenegro should consider ratifying the Convention on the Reduction of Statelessness adopted in 1961. Other focuses of recommendations were the reported climate of impunity surrounding war crimes which remained unaddressed or were still in the investigation phase, with little or no result to date. Montenegro should expedite and complete its investigation of war crimes, and ensure that all perpetrators, in particular those bearing the greatest responsibility, were brought to justice. With regard to prisons, Montenegro should strengthen the implementation of the national prison reform process, including the allocation of sufficient funds to further improve the infrastructure, in particular of Podgorica Prison, and should take appropriate measures to prevent sexual violence in prisons, including inter-prisoner violence.
Belgium
Among positive aspects identified in the review of the second periodic report of Belgium, the Committee noted with satisfaction that Belgium had ratified the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women; that it had signed the Convention on the Rights of Persons with Disabilities and its Optional Protocol; and that it had signed the Convention for the Protection of All Persons from Enforced Disappearance and its Optional Protocol. Among legislative advances were the draft law providing that there was no possibility of invoking a “state of necessity” defence for crimes of torture and the enactment of strengthened human rights protections for all extradition cases. Further measures which the Committee welcomed were the adoption of minimal standards for places of detention and the requirement to keep a chronological log of detentions, and the national plan of action against domestic violence.
The Committee was concerned that a system for complaints had not been effectively implemented in closed centres for asylum-seekers, and in particular that it was virtually impossible for a person who had been expelled to bring a complaint. With regard to complaints against the police, despite assurances of the independent nature of the structure of “Committee P” (the Standing Committee on the Supervision of the Police Services) the Committee remained concerned that its members contained a high number of policemen or police that had been detached from their regular service. The Committee noted with concern that it continued to receive information from NGOs alleging ill-treatment by police officers, such as arbitrary arrest and racial slurs, refusals to act on complaints, and physical abuse or degrading or inhuman treatment, especially in the certain areas around Brussels. It was also worried about an increase in complaints of discriminatory behaviour by law enforcement agents.
The Committee was seriously concerned about the insufficient guarantee for a minor to a lawyer or other guardian during initial interrogations by the police. The Committee noted the pilot project to film all first police interrogations of minors taken into custody, but felt that it was could not replace the need for the presence of a lawyer or other responsible party and recommended that such presence be ensured in all such cases. While taking note of activities and plans to address the situation, the Committee remained concerned about poor conditions of detention in penal centres. It was particularly concerned about the lack of sufficient inspections, the unsuitable or dilapidated condition of the buildings, the insufficiently hygienic conditions, and an increase in inter-prisoner violence. Another specific focus of concern was the difficult conditions for psychiatric internees, owing to insufficient care and inadequate facilities. Finally, with regard to violence against women and girls, the Committee, regretted the lack of a national strategy to combat that phenomenon. Belgium should adopt such a national strategy, should enact legislation prohibiting corporal punishment of children in the home, should guarantee women and children victims of violence access to complaint mechanisms, and ensure that the victims received the necessary physical and psychological assistance.
Kenya
Following its examination of the initial report of Kenya, the Committee welcomed efforts made to strengthen Kenya’s legal and institutional framework to safeguard universal human rights protection, including its ratification of most of the core international human rights treaties; the ratification of the Rome Statute of the International Criminal Court in 2005; the adoption of the Community Service Order Act in 1998, establishing the option of community services projects as an alternative to custodial sentences; the adoption of the Children’s Act in 2002; the enactment of the Witness Protection Act in 2006; the closing of the infamous Nyayo House torture chambers; the establishment of the Kenya National Commission on Human Rights in 2003; the launch of the Governance, Justice, Law and Order Programme intended to reform the legal and justice sector; and the recent establishment of the civilian independent Police Oversight Board. The Committee also welcomed Kenya’s efforts to cooperate with non-governmental organizations.
The Committee was deeply concerned about the common practice of unlawful and arbitrary arrest by the police and the widespread corruption among police officers, and noted with deep concern the numerous and consistent allegations of widespread use of torture and ill-treatment of suspects in police custody in Kenya. It also noted with concern the challenges reported by Kenya in providing people under arrest with the appropriate legal safeguards, including the right to access a lawyer, and to an independent medical examination. As a matter of urgency, Kenya should announce a zero-tolerance policy for all acts of torture or ill-treatment by State officials or others working in their capacity and should promptly adopt effective measures to ensure that all persons detained were afforded, in practice, fundamental legal safeguards during detention, including the right to a lawyer. Furthermore, Kenya should keep under systematic review interrogation rules, instructions, methods and practices with a view to preventing cases of torture. Given reported difficulties in this area, Kenya should also take all appropriate measures to ensure that the Kenya National Commission on Human Rights, without exception, was provided with the necessary conditions to carry out its mandate to independently monitor all places of detention, including police stations.
The Committee noted with concern the statements made by the Kenyan delegation, confirmed by numerous and consistent reports, about the practice of returns and renditions of individuals to Somalia, Ethiopia and Guantanamo Bay, including the case of Mr. Abdulmalik, on the basis of national security and actions to fight terrorism. It urged Kenya to ensure that any measure taken to combat terrorism was in accordance with Security Council resolutions requiring that anti-terrorist measures be carried out with full respect for international human rights law. The Committee noted with serious concern the numerous reports and allegations of disproportionate use of force and widespread torture by members of the police force during the 2007-2008 post-election violence, including sexual violence and gang rape. While taking note of the recently established special task force by the police to enquire on sexual-related crimes during that period, the Committee urged Kenya to take immediate action to ensure prompt, impartial and effective investigation of all allegations of excessive use of force and torture by the police during this period. Another concern was the persistent linkage between widespread violence and torture by state agents and the problem of land. In that connection, the Committee was deeply concerned about allegations of mass arrests, persecution, torture and unlawful killings by the military in the Mount Elgon region during the “Operation Okoa Maisha” conducted in March 2008. Kenya should take immediate action to ensure prompt, impartial and effective investigations into those allegations and ensure that the victims who lost their lives were properly identified and that their families, as well as the other victims, were adequately compensated. Owing to concerns about reports of the use of excessive force, sometimes resulting in deaths, by the police during evictions, the Committee further urged Kenya to provide specific training for police officers, and that it ensure that complaints concerning forced evictions were thoroughly investigated and that those found responsible are brought to trial.
Membership and Officers
The Committee's members are elected by the States parties to the Convention and serve in their personal capacity. The current members of the Committee are: Essadia Belmir (Morocco); Abdoulaye Gaye (Senegal); Felice Gaer (the United States); Luis Gallegos Chiriboga (Ecuador); Claudio Grossman (Chile); Alexander Kovalev (Russian Federation); Fernando Mariño Menendez (Spain); Myrna Kleopas (Cyprus); Nora Sveaass (Norway) and Xuexian Wang (China).
Mr. Grossman is the Committee Chairman; Ms. Sveaass, Ms. Belmir and Mr. Wang are Vice Chairmen; and Ms. Kleopas is the Committee Rapporteur.
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For use of the information media; not an official record
ROUND-UP
21 November 2008
Issues Concluding Observations on Reports of Lithuania, Serbia, Kazakhstan,
China, Montenegro, Belgium and Kenya
The Committee against Torture today concluded its forty-first session, issuing its concluding observations and recommendations on reports from Lithuania, Serbia, Kazakhstan, China (including the Macao and Hong Kong Special Administrative Regions), Montenegro, Belgium and Kenya, which it reviewed during the session. It also held a brief meeting to discuss follow-up to its concluding observations.
Those countries are among the 147 States parties to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and are bound by the terms of the treaty to submit periodic reports on efforts to ensure that such human rights violations do not occur on their territories. In addition to submitting the reports, the countries sent delegations before the Committee of 10 independent Experts to answer questions.
In its concluding observations on the report of Lithuania, the Committee noted with satisfaction the adoption of the Code of Conduct of Officers of the Prison Department and the 2004 Code of Ethics for Lithuanian Police Officials. Reports of prolonged pre-trial and administrative detentions remained a concern, as did reports of ill-treatment and discrimination against ethnic minorities, especially Roma, including by law enforcement officials. Lithuania was recommended to allocate sufficient resources to ensure the effective implementation of the Strategy on the Reduction of Violence against Women.
Regarding Serbia, the Committee welcomed the adoption of a new Constitution, which came into force in 2006, and which provided that no one could be subjected to torture. Among principal concerns was the lack of an independent and external oversight mechanism for alleged unlawful acts committed by the police. It was recommended that Serbia investigate reports of torture or cruel, inhuman or degrading treatment or punishment of persons with disability in institutions.
Among positive aspects in Kazakhstan, the Committee welcomed the recent ratification of a number of international instruments, including the Optional Protocol to the Convention against Torture. A concern was consistent allegations concerning the frequent use of torture and ill-treatment, including the threat of sexual abuse and rape, committed by law enforcement officers, often to extract “voluntary confessions”. As a matter of priority, Kazakhstan should pursue its efforts to reform the Procuracy so as to reduce the procurator’s dominating role throughout the judicial process and secure a fairer balance between the respective roles of the prosecutor, the defence counsel and the judge.
With regard to China, the Committee welcomed the adoption of administrative regulations prohibiting the use of torture to obtain confessions and the introduction of audio and video recording in interrogation rooms. The Committee identified three over-arching problems standing in the way of ensuring safeguards necessary for the prevention of torture: the 1988 Law on the Preservation of State Secrets; the reported harassment of lawyers and human rights defenders; and the abuses carried out by unaccountable "thugs" against specific defenders. Among recommendations were that China ensure that all persons who were detained or arrested in the aftermath of the March 2008 events in the Tibetan Autonomous Region had prompt access to an independent lawyer and independent medical care and the right to lodge complaints in a confidential atmosphere, free from reprisal or harassment.
Specifically on the Macao Special Administrative Region of China, the Committee welcomed the creation of the Commission for Disciplinary Control of the Security Forces and Services of Macao. Concerns included a lack of special training programmes for health professionals aiming at identifying and documenting cases of torture and providing rehabilitation for victims and that children as young as 12 could potentially be subjected to solitary confinement for up to one month. The Committee recommended that Macao increase protection, including recovery and reintegration, to trafficked persons, especially women and children.
Regarding the Hong Kong Special Administrative Region, the Committee welcomed the enactment of the Independent Police Complaints Council Ordinance in 2008 and the new Guidelines on Searching of Detained Persons. The Committee was concerned that there was still no legal regime governing asylum and establishing a fair and efficient refugee status determination procedure. It recommended that Hong Kong continue to take steps to establish a fully independent mechanism mandated to receive and investigate complaints on police misconduct.
With respect to Montenegro, the Committee welcomed the adoption of the Law on Protection of Rights of Mental Health Patients and the establishment of the Council for the Protection of Rights of Mental Health Patients in 2006. It was concerned that the legal status of a large number of “displaced persons” from Croatia and Bosnia Herzegovina and “internally displaced persons” from Kosovo had not yet been regularized. The Committee recommended that Montenegro expedite its investigation of war crimes, and ensure that all perpetrators were brought to justice.
With reference to Belgium, the Committee welcomed the adoption of minimal standards for places of detention and the requirement to keep a chronological log of detentions. It was seriously concerned about the insufficient guarantee for minors to a lawyer or other guardian during initial interrogations by the police. Concern was expressed at the lack of sufficient inspections in prisons, as well as the unsuitable or dilapidated condition of the buildings, and an increase in inter-prisoner violence.
Among welcome developments in Kenya were the closing of the infamous Nyayo House torture chambers and the recent establishment of the Police Oversight Board. The Committee noted with deep concern the numerous and consistent allegations of widespread use of torture and ill-treatment of suspects in police custody. Regarding reports of disproportionate use of force and widespread torture by members of the police during the 2007-2008 post-election violence, including gang rape, and the allegations of mass arrests, persecution, torture and unlawful killings by the military in the Mount Elgon region in March 2008, the Committee requested Kenya to take immediate action to ensure prompt, impartial and effective investigations and to ensure that victims were adequately compensated.
In addition to reviewing country reports in public session, the Committee considered in private meetings information appearing to contain well-founded indications that torture was being systematically practiced in the territories of some States parties. It also examined communications from individuals claiming to be victims of violations by States parties of the provisions of the Convention. Such communications are accepted only if they concern the 62 States that have declared the Committee competent to receive complaints under article 22 of the Convention.
Also at this session, on 18 November, the Committee held a meeting with the Subcommittee on Prevention of Torture in which it discussed areas of collaboration between the two bodies. In a similar vein, on the morning of 20 November, the Committee held an interactive dialogue with Manfred Nowak, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, to discuss synergies with the work of that mandate and the work of the Committee.
This afternoon, the Committee discussed follow-up to its concluding observations, hearing an oral presentation by Committee Expert Fernando Mariño Menendez on the status of follow-up for the United States, where he noted various exchanges of letters and "good faith" responses by the United States. He underscored that the dialogue was ongoing.
The Committee’s next session will be held from 27 April to 15 May 2009, during which it is scheduled to examine reports from Chad, Chile, Honduras, Israel, New Zealand, Nicaragua and the Philippines.
Conclusions and Recommendations on Country Reports
Lithuania
Having considered the second periodic report of Lithuania, the Committee noted with satisfaction the ongoing efforts at the State level to reform Lithuanian legislation, policies and procedures in order to ensure better protection of human rights. In particular, the Committee noted the Law on Equal Treatment and its 2007 Amendment, implementing the principle of equal treatment between persons irrespective of racial or ethnic origin; the Code of Conduct of Officers of the Prison Department and the 2004 Code of Ethics for Lithuanian Police Officials; the 2007 Concept of the Probation System in Lithuania and its implementation plan; the Mental Health Strategy approved by the Seimas (Parliament) on 3 April 2007; and the adoption by the Government on 18 June 2008 of the State Mental Health Strategy Implementation Programme for 2008-2010.
Among principal concerns of the Committee was that the crime of torture as defined in the Convention had not been incorporated in domestic law and might in some cases be subject to a statute of limitations. On asylum-seekers, the Committee was concerned that there was no mechanism in place to identify possible victims of torture or ill-treatment. A further concern was that all asylum-seekers, including single women or women with children, and traumatized asylum-seekers, were accommodated in the same building. Also with regard to foreigners, the Committee noted with concern that the principle of non-refoulement did not apply with respect to an alien who constituted a threat to national security or had been convicted of a serious crime and constituted a threat to the public. Further concerns of the Committee were reports of prolonged pre-trial detention and administrative detention, of both minors and adults. The Committee recommended that Lithuania take appropriate measures to further reduce the duration of detention in custody and detention before charges were brought, and develop and implement alternatives to deprivation of liberty, including probation, mediation, community service or suspended sentences. Further concerns were expressed on the unsuitable infrastructures and unhygienic living conditions in some prisons and Pre-Trial Wards, as well as the occurrence of inter-prisoner violence and lack of statistical data in that area.
The Committee was concerned at reports of ill-treatment and discrimination against ethnic minorities, especially Roma, including information indicating that instances of ill-treatment by law enforcement officials were often directed at persons belonging to ethnic minorities. Lithuania should ensure prompt, impartial and thorough investigations into all such acts and prosecute and punish perpetrators with appropriate penalties, as well as ensure adequate training and instructions for law enforcement bodies and sensitization of the judiciary. Given the high prevalence of violence against women and children, including domestic violence, the Committee regretted the absence of a definition of domestic violence in national legislation and the fact that the number of crisis centres was insufficient. The Committee called upon Lithuania to allocate sufficient financial resources to ensure the effective implementation of the State Strategy on the Reduction of Violence against Women and to closely monitor the results achieved, as well as to adopt a specific type of criminal offence for domestic violence.
Serbia
Following its examination of the initial report of Serbia, the Committee welcomed the many legislative changes, including the adoption of a new Constitution, which came into force in 2006, and which provided that no one could be subjected to torture; the law establishing the War Crimes Chamber, adopted in 2003; the Criminal Code, which defined and criminalized torture, adopted in 2005; and the Law on Asylum, which established the principle of prohibition of non-refoulement, which had entered into force in 2008. The Committee also welcomed the ratification, in 2006, of the Optional Protocol to the Convention against Torture and the ratification, in 2002 and 2003, respectively, of the Optional Protocols to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography and on the involvement of children in armed conflict.
Among principal concerns, the Committee remained concerned at the lack of an independent and external oversight mechanism for alleged unlawful acts committed by the police. Other concerns included that, in practice, the police did not respect the right of a detainee to access a lawyer of his or her own choice, to access an examination by an independent doctor within 24 hours of detention, and the right to contact his or her family; the absence of adequate protocols for the medical profession on how to report on findings of torture in a systematic and independent manner; and the slowness of investigations and the fact that officials were not suspended during the investigations into allegations of torture or ill-treatment. Serbia should, among others, suspend persons who had allegedly committed acts of torture during the investigation of such allegations; ensure that education and training of all law enforcement personnel was conducted on a regular basis; and strengthen efforts to implement a gender-sensitive approach for the training of those involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment.
The Committee noted Serbia’s acknowledgement that poor and inadequate treatment took place in some institutions and remained concerned at reports of the treatment of children and adults with mental or physical disability, especially at the forceful internment and long-term restraint used in institutions that amounted to torture or cruel, inhuman and degrading treatment or punishment in social protection institutions for persons with mental disability and psychiatric hospitals. Furthermore, it was concerned that no investigation seemed to have been initiated with respect to treatment of persons with disability in institutions. Serbia should initiate social reforms and alternative community-based support systems in parallel with the ongoing process of de-institutionalization of persons with disability, and strengthen professional trainings in both social protection institutions for persons with mental disability and psychiatric hospitals; and investigate reports of torture or cruel, inhuman or degrading treatment or punishment of persons with disability in institutions.
Kazakhstan
Among positive aspects in the second periodic report of Kazakhstan, the Committee welcomed the recent ratification by Kazakhstan of a number of international instruments, including the Optional Protocol to the Convention against Torture and the International Covenant on Civil and Political Rights and the signature of the first optional protocol in 2007. It further welcomed a number of legislative measures including the definition of torture and cruel treatment in the Criminal Code; the amendment of the Code of Criminal Procedure making statements obtained through the use of torture inadmissible as evidence; and amendments in 2003 making trafficking in human beings an offence under the Criminal Code. Also noted with satisfaction were the establishment of the Office of the Human Rights Commissioner (Ombudsman) in 2002; the creation of a Central Public Monitoring Commission in 2005 and Regional Independent Public Monitoring Commissions in 2004 with the authority to inspect detention facilities; and the amendment of the Criminal Code to introduce life imprisonment instead of capital punishment.
The Committee was concerned about consistent allegations concerning the frequent use of torture and ill-treatment, including the threat of sexual abuse and rape, committed by law enforcement officers, often to extract “voluntary confessions”. The Committee noted with particular concern reports that the National Security Committee had used counter-terrorism operations to target vulnerable groups or groups perceived as a threat to national and regional security, such as asylum-seekers and members or suspected members of banned Islamic groups. Of deep concern were allegations that torture and ill-treatment of suspects commonly took place during the period between apprehension and the formal registration of detainees at the police station. In particular, there was a failure to acknowledge and record the actual time of apprehension of a detainee and restricted access to lawyers and independent doctors. Kazakhstan should amend the Code of Criminal Procedure so as to ensure that no exceptional circumstances could be invoked for postponing the exercise of the right of a detainee to inform a relative of his/her whereabouts. The Committee was particularly concerned at allegations of forcible return of asylum-seekers from Uzbekistan and from China and the unknown conditions, treatment and whereabouts of persons returned following their arrival in the receiving country.
Among others, the Committee recommended that Kazakhstan ensure that all instances of death in custody – which had remained persistently high – were promptly, impartially and effectively investigated and that those found responsible were prosecuted. As preliminary examinations of reports and complaints of torture and ill-treatment by police officers were undertaken by the Department of Internal Security, which was under the same chain of command as the regular police force, the Committee recommended that Kazakhstan adopt measures to ensure in practice prompt, impartial and effective investigations into all allegations of torture and ill-treatment and that such investigations should be undertaken by a fully independent body. Kazakhstan should also, as a matter of priority, pursue its efforts to reform the Procuracy so as to reduce the procurator’s dominating role throughout the judicial process and secure a fairer balance between the respective roles of the prosecutor, the defence counsel and the judge.
China
Having reviewed the fourth periodic report of China, the Committee welcomed the ongoing reform of China's legal framework with the adoption of the 2001 Marriage Law explicitly prohibiting domestic violence; the 2007 amended Law on Lawyers guaranteeing lawyers’ right to meet with criminal suspects; and the 2005 Law on Administrative Punishments for Public Order and Security which required that security organs adhere to principles of respect for human rights guarantees. The Committee also welcomed the adoption of administrative regulations prohibiting the use of torture to obtain confessions, the provision of nationwide training of the police and the introduction of audio and video recording in interrogation rooms. The Committee noted with interest that China had invited and received a visit from the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment in November-December 2005 and that China had also received the Working Group on Arbitrary Detention twice.
The Committee was deeply concerned about the continued allegations of routine and widespread use of torture and ill-treatment of suspects in police custody, especially to extract confessions. Furthermore, it noted with concern the lack of legal safeguards for detainees, including failure to bring detainees promptly before a judge; prolonged police detention without charge for up to 37 days or longer; absence of systematic registration of all detainees; restricted access to lawyers and independent doctors; and the lack of an effective independent monitoring mechanism on the situation of detainees. As a matter of urgency, China should take immediate steps to prevent acts of torture and ill-treatment throughout the country, in particular, through implementation of effective measures to ensure that all detained suspects were afforded all fundamental legal safeguards during their detention. A further concern was the extended use of all forms of administrative detention, including “Re-education through Labour”, for individuals who had never had their case tried in court, nor had the possibility of challenging their detention, as well as by allegations that secret detention facilities, including the so-called “black jails”, were used to detain petitioners. Detention in such facilities constituted per se disappearance.
The Committee identified three over-arching problems, which, collectively, stood in the way of ensuring the legal safeguards that the Committee generally recommended to all States parties to the Convention as necessary for the prevention of torture: the 1988 Law on the Preservation of State Secrets in the People’s Republic of China; the reported harassment of lawyers and human rights defenders; and the abuses carried out by unaccountable "thugs" who used physical violence against specific defenders but enjoy de facto immunity. Among the Committee's recommendations were that China should conduct a full and impartial investigation into the suppression of the Democracy movement in Beijing in June 1989. China should also ensure that all persons who were detained or arrested in the aftermath of the March 2008 events in the Tibetan Autonomous Region had prompt access to an independent lawyer and independent medical care and the right to lodge complaints in a confidential atmosphere, free from reprisal or harassment. Furthermore, it should adopt all necessary measures to prohibit and prevent enforced disappearances, to shed light on the fate of missing persons, including Genden Choekyi Nyima, and prosecute and punish perpetrators. China should conduct investigations or inquests into the deaths, including in custody, of persons killed in the March 2008 events in the Tibetan Autonomous Region. Finally, China should immediately conduct or commission an independent investigation of the claims that some Falun Gong practitioners had been subjected to torture and used for organ transplants and take measures, as appropriate, to ensure that those responsible for such abuses were prosecuted and punished.
Macao Special Administrative Region of China
Among positive aspects in the report of the Macao Special Administrative Region of China, included as part of the fourth periodic report of China, were the new Law 6/2008 on the Fight Against Trafficking in Persons, which defined and criminalized trafficking in accordance with international standards; Law 1/2004, establishing the Legal Framework on the Recognition and Loss of Refugee Status, which set up a Commission for Refugees to assess asylum claims in cooperation with the UN Refugee Agency; and the creation, in 2005, of the Commission for Disciplinary Control of the Security Forces and Services of Macao, which had the mandate to consider complaints by individuals.
Noting the difference between the crimes provided for by the Criminal Code in articles 234 (torture) and 236 (serious torture), the Committee was concerned that that distinction might lead to the perception that there were more and less serious crimes of torture, a distinction which not only was wrong but could create obstacles to effective prosecution of all cases of torture. Further concerns included a lack of special training programmes for health professionals aiming at identifying and documenting cases of torture and providing rehabilitation for the victims; that children as young as 12 could potentially be subjected to solitary confinement for up to one month; and the incidence of trafficking in Macao, notably in women and children, especially for the purpose of sexual exploitation.
The Committee recommended that Macao should investigate all cases of trafficking and strengthen its efforts to prosecute and punish the perpetrators; increase protection, including recovery and reintegration, to trafficked persons, especially women and children; and should strengthen cooperation with the authorities of countries from or to which individuals were trafficked in order to combat that practice.
Hong Kong Special Administrative Region of China
With regard to the report of the Hong Kong Special Administrative Region of China, included as part of the fourth periodic report of China, the Committee welcomed the Hong Kong Bill of Rights Ordinance (Cap. 383), which incorporated into Hong Kong law the provisions of the International Covenant on Civil and Political Rights; the enactment of the Independent Police Complaints Council Ordinance on 12 July 2008; the new Guidelines on Searching of Detained Persons introduced and applied by the Police since 1 July 2008, aimed at ensuring that searches were conducted respecting the privacy and dignity of individuals; and the measures taken to tackle domestic violence, including the strengthening of services to assist victims and the passing of the Domestic Violence (Amendment) Bill in June 2008.
The Committee was still concerned that there was still no legal regime governing asylum and establishing a fair and efficient refugee status determination procedure, and that there were no plans to extend to Hong Kong the 1951 UN Convention relating to the Status of Refugees and its 1967 Protocol. The Committee recommended, among others, that Hong Kong incorporate the provisions contained in article 3 of the Convention (non-refoulement) under the Crimes (Torture) Ordinance; that it consider adopting a legal regime on asylum establishing a comprehensive and effective procedure to examine the merits of each individual case; and that it ensure protection, including recovery and reintegration, to trafficked persons, especially women and children, who should be treated as victims and not criminalized.
Moreover, concerned at the allegations of routine police abuses of persons during prostitution-related operations, the Committee recommended that the Hong Kong authorities thoroughly investigate all allegations of abuses committed during police operations in the context of such offences which, if substantiated, should be appropriately prosecuted and punished. It should also continue to take steps to establish a fully independent mechanism mandated to receive and investigate complaints on police misconduct.
Montenegro
Following its examination of the initial report of Montenegro, the Committee welcomed the adoption of the following: the new Constitution in 2007, which defined torture; the Law on Protection of Rights of Mental Health Patients, as well as the establishment of the Committee on Ethics and the Council for the Protection of Rights of Mental Health Patients in 2006; the Asylum Law in July 2006; the Strategy for the Reform of the Judiciary for the period 2007–2012; and the Code of Police Ethics in January 2006. Also welcome was the ratification of the Rome Statute of the International Criminal Court in 2006.
The Committee was concerned that, in practice, detainees were not always afforded the right to access a lawyer, an independent doctor, and to contact a relative from the outset of deprivation of liberty in Montenegro. The Committee was also concerned that the Ombudsman, established in 2003, had not been able to conduct regular visits to places of detention and that the independence of that institution was not fully ensured. A further concern was reports that juveniles in conflict with the law were often treated under the same laws and procedures applicable to adults, that they were held for long periods in pre-trial detention and shared open spaces with adult detainees.
The Committee was also concerned that Montenegro had not yet regularized the legal status of a large number of “displaced persons” from Croatia and Bosnia Herzegovina and “internally displaced persons” from Kosovo. Montenegro should consider ratifying the Convention on the Reduction of Statelessness adopted in 1961. Other focuses of recommendations were the reported climate of impunity surrounding war crimes which remained unaddressed or were still in the investigation phase, with little or no result to date. Montenegro should expedite and complete its investigation of war crimes, and ensure that all perpetrators, in particular those bearing the greatest responsibility, were brought to justice. With regard to prisons, Montenegro should strengthen the implementation of the national prison reform process, including the allocation of sufficient funds to further improve the infrastructure, in particular of Podgorica Prison, and should take appropriate measures to prevent sexual violence in prisons, including inter-prisoner violence.
Belgium
Among positive aspects identified in the review of the second periodic report of Belgium, the Committee noted with satisfaction that Belgium had ratified the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women; that it had signed the Convention on the Rights of Persons with Disabilities and its Optional Protocol; and that it had signed the Convention for the Protection of All Persons from Enforced Disappearance and its Optional Protocol. Among legislative advances were the draft law providing that there was no possibility of invoking a “state of necessity” defence for crimes of torture and the enactment of strengthened human rights protections for all extradition cases. Further measures which the Committee welcomed were the adoption of minimal standards for places of detention and the requirement to keep a chronological log of detentions, and the national plan of action against domestic violence.
The Committee was concerned that a system for complaints had not been effectively implemented in closed centres for asylum-seekers, and in particular that it was virtually impossible for a person who had been expelled to bring a complaint. With regard to complaints against the police, despite assurances of the independent nature of the structure of “Committee P” (the Standing Committee on the Supervision of the Police Services) the Committee remained concerned that its members contained a high number of policemen or police that had been detached from their regular service. The Committee noted with concern that it continued to receive information from NGOs alleging ill-treatment by police officers, such as arbitrary arrest and racial slurs, refusals to act on complaints, and physical abuse or degrading or inhuman treatment, especially in the certain areas around Brussels. It was also worried about an increase in complaints of discriminatory behaviour by law enforcement agents.
The Committee was seriously concerned about the insufficient guarantee for a minor to a lawyer or other guardian during initial interrogations by the police. The Committee noted the pilot project to film all first police interrogations of minors taken into custody, but felt that it was could not replace the need for the presence of a lawyer or other responsible party and recommended that such presence be ensured in all such cases. While taking note of activities and plans to address the situation, the Committee remained concerned about poor conditions of detention in penal centres. It was particularly concerned about the lack of sufficient inspections, the unsuitable or dilapidated condition of the buildings, the insufficiently hygienic conditions, and an increase in inter-prisoner violence. Another specific focus of concern was the difficult conditions for psychiatric internees, owing to insufficient care and inadequate facilities. Finally, with regard to violence against women and girls, the Committee, regretted the lack of a national strategy to combat that phenomenon. Belgium should adopt such a national strategy, should enact legislation prohibiting corporal punishment of children in the home, should guarantee women and children victims of violence access to complaint mechanisms, and ensure that the victims received the necessary physical and psychological assistance.
Kenya
Following its examination of the initial report of Kenya, the Committee welcomed efforts made to strengthen Kenya’s legal and institutional framework to safeguard universal human rights protection, including its ratification of most of the core international human rights treaties; the ratification of the Rome Statute of the International Criminal Court in 2005; the adoption of the Community Service Order Act in 1998, establishing the option of community services projects as an alternative to custodial sentences; the adoption of the Children’s Act in 2002; the enactment of the Witness Protection Act in 2006; the closing of the infamous Nyayo House torture chambers; the establishment of the Kenya National Commission on Human Rights in 2003; the launch of the Governance, Justice, Law and Order Programme intended to reform the legal and justice sector; and the recent establishment of the civilian independent Police Oversight Board. The Committee also welcomed Kenya’s efforts to cooperate with non-governmental organizations.
The Committee was deeply concerned about the common practice of unlawful and arbitrary arrest by the police and the widespread corruption among police officers, and noted with deep concern the numerous and consistent allegations of widespread use of torture and ill-treatment of suspects in police custody in Kenya. It also noted with concern the challenges reported by Kenya in providing people under arrest with the appropriate legal safeguards, including the right to access a lawyer, and to an independent medical examination. As a matter of urgency, Kenya should announce a zero-tolerance policy for all acts of torture or ill-treatment by State officials or others working in their capacity and should promptly adopt effective measures to ensure that all persons detained were afforded, in practice, fundamental legal safeguards during detention, including the right to a lawyer. Furthermore, Kenya should keep under systematic review interrogation rules, instructions, methods and practices with a view to preventing cases of torture. Given reported difficulties in this area, Kenya should also take all appropriate measures to ensure that the Kenya National Commission on Human Rights, without exception, was provided with the necessary conditions to carry out its mandate to independently monitor all places of detention, including police stations.
The Committee noted with concern the statements made by the Kenyan delegation, confirmed by numerous and consistent reports, about the practice of returns and renditions of individuals to Somalia, Ethiopia and Guantanamo Bay, including the case of Mr. Abdulmalik, on the basis of national security and actions to fight terrorism. It urged Kenya to ensure that any measure taken to combat terrorism was in accordance with Security Council resolutions requiring that anti-terrorist measures be carried out with full respect for international human rights law. The Committee noted with serious concern the numerous reports and allegations of disproportionate use of force and widespread torture by members of the police force during the 2007-2008 post-election violence, including sexual violence and gang rape. While taking note of the recently established special task force by the police to enquire on sexual-related crimes during that period, the Committee urged Kenya to take immediate action to ensure prompt, impartial and effective investigation of all allegations of excessive use of force and torture by the police during this period. Another concern was the persistent linkage between widespread violence and torture by state agents and the problem of land. In that connection, the Committee was deeply concerned about allegations of mass arrests, persecution, torture and unlawful killings by the military in the Mount Elgon region during the “Operation Okoa Maisha” conducted in March 2008. Kenya should take immediate action to ensure prompt, impartial and effective investigations into those allegations and ensure that the victims who lost their lives were properly identified and that their families, as well as the other victims, were adequately compensated. Owing to concerns about reports of the use of excessive force, sometimes resulting in deaths, by the police during evictions, the Committee further urged Kenya to provide specific training for police officers, and that it ensure that complaints concerning forced evictions were thoroughly investigated and that those found responsible are brought to trial.
Membership and Officers
The Committee's members are elected by the States parties to the Convention and serve in their personal capacity. The current members of the Committee are: Essadia Belmir (Morocco); Abdoulaye Gaye (Senegal); Felice Gaer (the United States); Luis Gallegos Chiriboga (Ecuador); Claudio Grossman (Chile); Alexander Kovalev (Russian Federation); Fernando Mariño Menendez (Spain); Myrna Kleopas (Cyprus); Nora Sveaass (Norway) and Xuexian Wang (China).
Mr. Grossman is the Committee Chairman; Ms. Sveaass, Ms. Belmir and Mr. Wang are Vice Chairmen; and Ms. Kleopas is the Committee Rapporteur.
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