UNITED
NATIONS
E
Economic and Social
Distr.
GENERAL
Council
E/CN.4/1997/7
10 January 1997
Original: ENGLISH
COMMISSION ON HUNP N RIGHTS
Fifty—third session
Item 8 (a) of the provisional agenda
QUESTION OF THE HUNP N RIGHTS OF ALL PERSONS SUBJECTED TO ANY FORM OF
DETENTION OR IMPRISONMENT, IN PARTICUL/AR: TORTURE AND OTHER CRUEL,
INHUNP N OR DEGRADING TREATMENT OR PUNISHMENT
Report of the Special Rapporteur, Mr. Nigel S. Rodley, submitted
pursuant to Commission on Human Rights resolution 1995/37 B
CONTENTS
Paragraphs Page
Introduction . 1 — 2 4
I. MP NDATE AND METHODS OF WORK 3 - 13 4
A. Themandate . . . . 3-11 4
B. Methods of work 12 — 13 7
8
9
9
9
II. ACTIVITIES OF THE SPECIAL RAPPORTEUR 14 - 17
III. INFORMATION REVIEWED BY THE SPECIAL RAPPORTEUR
WITH RESPECT TO VARIOUS COUNTRIES . 18 - 217
Algeria
Albania
Armenia
Austria
Azerbaijan . .
Bahrain
Bangladesh . .
Bolivia
Bulgaria
Burundi
20
21
22
—
23
10
24
10
25
10
26
—
29
10
30
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31
11
32
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34
11
35
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37
12
38
12
GE.97—10113 (E)
E/CN.4/1997/7
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CONTENTS ( continued
ParaQra hs PaQe
Carftodia
Cameroon
Canada
Chad
Chile
China
Colori ia
Congo
Côte d'Ivoire
Cuba
Cyprus
Ecuador
Egypt
El Salvador
Equatorial Guinea
Ethiopia
France
Germany
Greece
Guatemala
Guinea
Honduras
Hungary
India
Indonesia
Iran (Islamic Republi
Iraq
Israel
Italy
Jamaica
Jordan
Kazakstan
Kenya
Libyan Arab
Mexico
Morocco
Myanmar
Nepal
Nigeria
Pakistan
Paraguay
Peru .
Philippines
Poland
Portugal
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40
41
42
43— 54
55— 61
62— 64
65
66
67— 68
69
70
71— 73
74
75— 76
77
78
79— 80
81
82 — 83
84
85
86
87 — 90
91 — 111
112 — 113
114
115 — 121
122 — 124
125
126
127
128 — 138
139
140 — 142
143
144 — 148
149
150 — 152
153 — 154
155
156 — 158
159
160
161
162 — 165
166 — 169
170 — 176
177 — 178
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13
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13
16
17
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18
18
18
18
18
19
19
19
20
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30
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31
31
31
33
33
34
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35
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36
36
36
37
37
37
37
37
38
40
Jamahiriya
Republic of Korea
Romania
Russian Federation
Saudi Arabia .
E/CN. 4/1997/7
page 3
CONTENTS
ParaQra hs PaQe
Senegal
Slovakia
Spain
Sudan
Sweden
Switzerland
Syrian Arab Republic
Tunisia
Turkey
Uganda
United Arab Emirates
United Kingdom of Great Britain and
Northern Ireland
United Republic of Tanzania
Uzbekistan
Venezuela
Viet Nam
Yugoslavia
Zaire
Zarftia
Other corimunications: information transmitted to
the Palestinian Authority 216
Concluding remarks . . . 217
179 — 181
182
183 — 184
185 — 187
188
189
190
191 — 193
194 — 200
201
202
203
204 — 205
206
207 — 208
209
210 — 212
213 — 214
215
41
41
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42
42
42
43
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46
46
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48
48
48
Annex: Methods of work of the Special Rapporteur on torture
49
E/CN.4/1997/7
page 4
Introduction
1. The mandate of the Special Rapporteur on torture, assigned since
April 1993 to Mr. Nigel S. Rodley (United Kingdom), was renewed for three more
years by the Corimission on Human Rights in its resolution 1995/37 B. In
conformity with this resolution and with resolution 1996/33 B, the Special
Rapporteur hereby presents his fourth report to the Corir ission. Chapter I
deals with a nur er of aspects pertaining to the mandate and methods of work.
Chapter II sur1r arizes his activities during 1996. Chapter III consists mainly
of a review of the information transmitted by the Special Rapporteur to
Governments, as well as the replies received, from 15 Deceriber 1995 to
15 Deceriber 1996. Chapter IV contains conclusions and recorimendations.
2. In addition to the above—mentioned resolutions, several other
resolutions adopted by the Corir ission on Human Rights at its fifty-second
session are also pertinent within the framework of the mandate of the
Special Rapporteur and have been taken into consideration in examining and
analysing the information brought to his attention. These resolutions are, in
particular: resolution 1996/20, “Rights of persons belonging to national or
ethnic, religious and linguistic minorities”; resolution 1996/32, “Human
rights in the administration of justice, in particular of children and
juveniles in detention”; resolution 1996/46, “Human rights and thematic
procedures”; resolution 1996/47, “Human rights and terrorism”;
resolution 1996/48, “Question of integrating the rights of women throughout
the United Nations system”; resolution 1996/49, “The elimination of violence
against women”; resolution 1996/51, “Human rights and mass exoduses”;
resolution 1996/52, “Internally displaced persons”; resolution 1996/53, “Right
to freedom of opinion and expression”; resolution 1996/55, “Advisory services,
technical cooperation and the Voluntary Fund for Technical Cooperation in the
Field of Human Rights”; resolution 1996/62, “Hostage taking”;
resolution 1996/78, “Comprehensive implementation of and follow—up to the
Vienna Declaration and Prograrir e of Action”; resolution 1996/85, “Rights of
the Child”.
I. MANDATE AND METHODS OF WORK
A. The mandate
3. There have been no changes to the mandate of the Special Rapporteur,
which is primarily concerned with torture, as well as with what the first
Special Rapporteur, Professor Peter Kooijmans, described as the “grey zone”
between torture and other forms of cruel, inhuman and degrading treatment or
punishment (see E/CN.4/1986/15, para. 33) . Among the phenomena understood as
falling within the wgrey zone” was that of corporal punishment and it has been
the general practice under the mandate to take up cases involving corporal
punishment, usually by means of the urgent appeal method.
4. However, as indicated in the addendum to this report
(E/CN.4/1997/7/Add.1, para. 435), the Government of Saudi Arabia has contested
the basis of the Special Rapporteur's concern with corporal punishment.
Informal contacts with Governments and non—governmental organizations have
also suggested a more generalized interest in the conceptual issues raised by
E/CN. 4/1997/7
page 5
the relationship of the practice to the mandate of the Special Rapporteur.
Accordingly, the following paragraphs aim to address the matter.
5. The Special Rapporteur throughout his tenure has received substantial
information on the practice of corporal punishment in a nuriber of countries.
The information pertains to a variety of methods of punishment, including
flagellation, stoning, amputation of ears, fingers, toes or lircJis, and
branding or tattooing. With respect to the practice in some countries, the
authority for the imposition and execution of the punishment derives from
legislation or executive decree having the force of legislation. The legal
provisions in question envisage the infliction of corporal punishment as an
ordinary criminal sanction, either alternative to or in corftination with other
sanctions such as fine or imprisonment. In some countries the provisions are
to be found in administrative regulation, such as that contained in prison
manuals in respect of disciplinary offences. In other instances, informal or
quasi—official agencies, such as ad hoc village tribunals or religious courts,
have pronounced sentences of corporal punishment which appear to be extrinsic
to the State's constitutional criminal justice system. In respect of these
latter cases, the State must be considered responsible for the consequences of
these sentences, if they are carried out with its authorization, consent or
acquiescence.
6. The Special Rapporteur takes the view that corporal punishment is
inconsistent with the prohibition of torture and other cruel, inhuman or
degrading treatment or punishment enshrined, inter alia , in the Universal
Declaration of Human Rights, the International Covenant on Civil and Political
Rights, the Declaration on the Protection of All Persons from Being Subjected
to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and
the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment. Accordingly, the Special Rapporteur has made a nuriber of
urgent appeals on behalf of persons who had been sentenced to corporal
punishment, requesting that the concerned Government not carry out the
sentence. He has also brought to the attention of a nunter of Governments
information he received on the general practice of corporal punishment in
their respective countries, as well as individual cases in respect of which
such punishment had been carried out.
7. The Special Rapporteur is aware of the view held by a small nunter of
Governments and legal experts that corporal punishment should not be
considered to constitute torture or cruel, inhuman or degrading treatment or
punishment, within the meaning of the obligation of States under international
law to refrain from such conduct. Some proponents of the proposition that
corporal punishment is not necessarily a form of torture argue that support
for their position may be found in article 1 of the Convention against
Torture, wherein torture is defined for the purposes of the Convention. That
definition excludes from the a n tit of proscribed acts those resulting in “pain
or suffering arising only from, inherent in or incidental to lawful
sanctions”. Thus, the argument proceeds, if corporal punishment is duly
prescribed under its national law, a State carrying out such punishment cannot
be considered to be in breach of its international obligations to desist from
torture.
E/CN.4/1997/7
page 6
8. The Special Rapporteur does not share this interpretation. In his view,
the “lawful sanctions” exclusion must necessarily refer to those sanctions
that constitute practices widely accepted as legitimate by the international
corir unity, such as deprivation of liberty through imprisonment, which is
common to almost all penal systems. Deprivation of liberty, however
unpleasant, as long as it comports with basic internationally accepted
standards, such as those set forth in the United Nations Standard Minimum
Rules for the Treatment of Prisoners, ‘ is no doubt a lawful sanction. By
contrast, the Special Rapporteur cannot accept the notion that the
administration of such punishments as stoning to death, flogging and
amputation — acts which would be unquestionably unlawful in, say, the context
of custodial interrogation — can be deemed lawful simply because the
punishment has been authorized in a procedurally legitimate manner,
i.e. through the sanction of legislation, administrative rules or judicial
order. To accept this view would be to accept that any physical punishment,
no matter how torturous and cruel, can be considered lawful, as long as the
punishment had been duly promulgated under the domestic law of a State.
Punishment is, after all, one of the prohibited purposes of torture.
Moreover, regardless of which “lawful sanctions” might be excluded from the
definition of torture, the prohibition of cruel, inhuman or degrading
punishment remains. The Special Rapporteur would be unable to identify what
that prohibition refers to if not the forms of corporal punishment referred to
here. Indeed, cruel, inhuman or degrading punishments are, then, by
definition unlawful; so they can hardly qualify as “lawful sanctions” within
the meaning of article 1 of the Convention against Torture.
9. As regards corporal punishment used for offences against prison
discipline, the Special Rapporteur considers that the peremptory language of
rule 31 of the Standard Minimum Rules for the Treatment of Prisoners reflects
the international prohibition of cruel, inhuman or degrading punishment:
wCorporal punishment, punishment by placing in a dark cell, and all cruel,
inhuman or degrading punishments shall be completely prohibited as punishments
for disciplinary offences.”
10. The Special Rapporteur cannot ignore the objections advanced by some
commentators that certain religious law and custom, such as that arising from
Shari'a, as interpreted by some Governments, requires the application of
corporal punishment in practice and that this exigency overrides any
interpretation of the norm against torture which would effectively outlaw
corporal punishment. While the Special Rapporteur cannot claim any competence
to deal with questions of religious law, he does take note of the fact that
there exists a great divergence of views among Islamic scholars and clerics
concerning the obligations of States to implement corporal punishment. In
this respect, he notes that the overwhelming majority of mer er States of the
Organization of the Islamic Conference do not have corporal punishment in
their domestic laws. He stresses that all States have accepted the principle
that human rights are universal, most notably in the Vienna Declaration and
Prograrime of Action. In part II, paragraph 56 of the Vienna Declaration and
Prograrime of Action, the World Conference on Human Rights authoritatively
reaffirms that under human rights law and international humanitarian law,
freedom from torture is a right which must be protected under all
circumstances . As there is no exception envisaged in international human
rights or humanitarian law for torturous acts that may be part of a scheme of
E/CN. 4/1997/7
page 7
corporal punishment, the Special Rapporteur must consider that those States
applying religious law are bound to do so in such a way as to avoid the
application of pain—inducing acts of corporal punishment in practice. In this
connection, he draws attention to the axiomatic doctrine that a State may not
invoke the provisions of its national law to justify non—compliance with
international law.
11. The Special Rapporteur notes support for his view in the position of the
Human Rights Corimittee, which has affirmed on at least two occasions that the
prohibition on torture and cruel, inhuman or degrading treatment or punishment
contained in article 7 of the International Covenant on Civil and Political
Rights extends to corporal punishment. 2 Furthermore, the Sub—Corimission on
Prevention of Discrimination and Protection of Minorities, in
resolution 1984/22, recorimended to the Corimission on Human Rights to urge
Governments of States which maintain the penalty of amputation “to take
appropriate measures to provide for other punishment consonant with article 5
[ of the Universal Declaration of Human Rights]”. The United Nations
General Asser ly has also addressed the issue with respect to the
administration of Trust Territories, recorimending in resolutions 440 (V) of
2 Decer er 1950 and 562 (VI) of 18 January 1952 that irir ediate measures be
taken to abolish corporal punishment in the Trust Territories. Corporal
punishment is plainly prohibited in the context of international armed
conflict by the Third and Fourth Geneva Conventions and Additional Protocol I
and, in non—international armed conflict, by Additional Protocol II. Finally,
various organs of the Corimission on Human Rights have contested resort to
corporal punishment, including the previous Special Rapporteur on torture (see
E/CN.4/1993/26, para. 593), the Special Rapporteur on the situation of human
rights in Afghanistan (see A/51/481, annex, para. 81), the Special
Representative on the situation of human rights in the Islamic Republic of
Iran (see E/CN.4/1991/35, para. 494), the Special Rapporteur on the situation
of human rights in Iraq (E/CN.4/1995/56, para. 32; E/CN.4/1996/61, para. 29;
A/51/496, annex, para. 108) , and the Special Rapporteur on the situation of
human rights in the Sudan (E/CN.4/1994/48, paras. 59-61)
B. Methods of work
12. The Special Rapporteur has continued to follow the methods of work
described in the first report of his tenure (E/CN.4/1994/31, chap. I) and
approved by the Corir ission in its resolutions 1994/37, paragraph 13,
1995/37 B, paragraph 6 and 1996/33 B, paragraph 6. In the light of frequent
requests from governmental and non—governmental sources for information
concerning the methods of work of the Special Rapporteur, a recapitulation
of the methods is contained in Annex 1 to this report.
13. The Special Rapporteur has continued the recent practice of cooperating
with the holders of other Corimission mandates to avoid duplication of activity
in respect of country—specific initiatives. Thus, he has sent urgent appeals
to Governments in conjunction with the following mechanisms: Working Group
on Arbitrary Detention; Special Rapporteurs on extrajudicial, summary or
arbitrary executions; on the independence of judges and lawyers and on freedom
of opinion and expression; Special Representative of the Secretary—General on
internally displaced persons; Special Rapporteurs on the situation of human
rights in Burundi, Cuba, Myanmar, the Sudan, the former Yugoslavia and Zaire;
E/CN.4/1997/7
page 8
Special Representative on the situation of human rights in the Islamic
Republic of Iran; Chairman of the Board of Trustees of the United Nations
Voluntary Fund for Victims of Torture.
II. ACTIVITIES OF THE SPECIAL PAPPORTEUR
14. During the period under review the Special Rapporteur undertook missions
to Pakistan (23 February—3 March 1996) , Venezuela (7—16 June 1996) and, in
respect of East Timor, Portugal (5 and 6 Septer er 1996) . The reports of
the visits to Pakistan and Venezuela may be found in addenda 2 and 3,
respectively, to the present report. Information on the visit to Portugal may
be found in paragraphs 95—109 of the present report. Outstanding requests for
invitations to visit Cameroon, China, India, Indonesia and Turkey remained
uncomplied with. The Government of Mexico responded positively to the
Special Rapporteur's request of last year and offered a date in 1996 that,
unfortunately, was not reconcilable with the Special Rapporteur's existing
corir itments. The Special Rapporteur hopes that the visit will be able to be
arranged early in 1997. Meanwhile, the Special Rapporteur this year sought an
invitation from the Government of Kenya, a request he followed up in a meeting
with the country's Permanent Representative to the United Nations Office at
Geneva.
15. Within the framework of related activities of the Coririjssion on Human
Rights, the Special Rapporteur participated in the third meeting of special
rapporteurs/special representatives/experts and chairpersons of working groups
of the special procedures of the Commission on Human Rights and of the
advisory services programme, which took place from 28 to 30 May 1996. He also
attended the Commission's open—ended working group on a draft optional
protocol to the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment. He drew attention to a nuriber of factors
he considered essential for the sort of preventive scheme contemplated by the
draft protocol. His points are reflected in the report of the Working Group
(E/CN.4/1997/33) . He also took advantage of these visits to Geneva for
consultations with the Secretariat. In addition, he visited the Centre for
Human Rights in Geneva from 5 to 9 August and 16 to 21 Decer er 1996 for
consultations with the Secretariat, Governments and non—governmental
organizations.
16. The Special Rapporteur also attended part of the fifth session of the
Corir ission on Crime Prevention and Criminal Justice which took place in Vienna
from 21 to 31 May 1996. Of particular relevance to his mandate were agenda
items under which reports on the responses of Governments to questionnaires
on the Standard Minimum Rules for the Treatment of Prisoners and on the Code
of Conduct for Law Enforcement Officials were discussed. From 4 to
6 Septeriber 1996, he participated in an international conference in Stockholm
organized by Amnesty International on means of corftating torture.
17. Finally, the Special Rapporteur draws attention to changes in the format
of his annual report. In most respects it follows the format of last year's
report for the reasons given therein (E/CN.4/1996/35, para. 8). This year,
however, addendum 1, which contains sur1r aries of individual cases taken up, is
reproduced in the official languages of the organization, an improvement for
which the Special Rapporteur is most grateful. However, he has had to reduce
E/CN. 4/1997/7
page 9
even more the amount of space given to the already abbreviated sur1r aries of
allegations and of government responses, because of the further page
limitation now imposed on the addendum.
III. INFOPT1ATION REVIEWED BY THE SPECIAL PAPPORTEUR WITH RESPECT TO
VARIOUS COUNTRIES
18. During the period under review, the Special Rapporteur sent 68 letters
to 61 Governments containing some 669 cases (about 67 known to be women
and about 55 known to be minors) or incidents of alleged torture. He
also transmitted 130 urgent appeals to 45 countries on behalf of some
490 individuals (at least 50 known to be women and 10 known to be minors), as
well as several groups of persons with regard to whom fears that they might be
subjected to torture had been expressed. Together with individual cases the
Special Rapporteur also transmitted to Governments allegations of a more
general nature regarding torture practices, whenever these allegations were
brought to his attention. In addition, 42 countries provided the Special
Rapporteur with replies on some 459 cases submitted during the current year,
whereas 24 did so with respect to some 363 cases submitted in previous years.
19. This chapter contains, on a country—by—country basis, sur1r aries of the
general allegations transmitted by letter to Governments and the latters'
replies, as well as a numerical breakdown of the individual cases and urgent
appeals transmitted by the Special Rapporteur and the replies received from
Governments. Information about follow—up action to reports and
recorir endations made after previous years' visits to countries are also
included. Finally, observations by the Special Rapporteur have also been
included where applicable.
AlQeria
Observations
20. At the end of the year, the Special Rapporteur received substantial
information concerning the use of torture in the context of detention and
enforced disappearances sometimes followed by death. Although there was
neither the time nor the resources to process the information with a view
to transmitting it to the Government, the Special Rapporteur felt that it
justified his drawing the concerns of the Corimittee against Torture to the
attention of the Corimission. In particular, the Corimittee expressed concern
about the resurgence since 1991 of torture, which had practically disappeared
between 1989 and 1991 as well as the possibility of extending Qarde a vue
detention up to 12 days and of ordering administrative detention without any
judicial authority. Like the Corimittee, the Special Rapporteur is aware of
the appalling level of violence in the country, including atrocities,
sometimes involving torture, perpetrated by armed opposition groups. He urges
the Government nevertheless to give urgent and favourable consideration to the
Corir ittee' s recorir endations.
Albania
21. The Special Rapporteur transmitted to the Government one urgent appeal
on behalf of mer ers of opposition political parties.
E/CN.4/1997/7
page 10
Armenia
22. By letter dated 12 June 1996 the Special Rapporteur informed the
Government that he had received reports of beatings and other forms of
ill—treatment inflicted for the purpose of obtaining information,
wconfessions or intimidation upon a nunter of persons detained in Armenia.
Detainees were reported frequently to be denied access to family meribers while
their cases were being investigated. Many alleged victims of ill—treatment
were said to be reluctant to make official complaints about the abuse for fear
that they might suffer reprisals. The Special Rapporteur also transmitted
six individual cases and information concerning a group of individuals.
Observations
23. In the light of the information he has received, the Special Rapporteur
shares the concern expressed by the Corir ittee against Torture “about the
nuriber of allegations it has received with regard to ill—treatment perpetrated
by pJ lic authorities during arrest and police custody” (A/51/44, para. 95)
and shares the Corimittee's “doubts about the effectiveness of the provisions
for the safeguard of persons in police custody” (para. 94) . He urges the
Government to give serious consideration to the Corimittee's recorimendations
(paras. 96-101)
Austria
24. The Special Rapporteur transmitted to the Government two individual
cases, to which the Government provided replies. The Government also replied
to one case transmitted in 1995.
Azerbaijan
25. The Special Rapporteur transmitted to the Government one individual
case.
Bahrain
26. By letter dated 6 May 1996 the Special Rapporteur advised the Government
that he had continued to receive information indicating that most persons
arrested for political reasons in Bahrain were held incorir unicado, a
condition of detention conducive to torture. The Security and Intelligence
Service (SIS) and the Criminal Investigation Department (CID) were alleged
frequently to conduct interrogation of such detainees under torture. The
practice of torture by these agencies was said to be undertaken with impunity,
with no known cases of officials having been prosecuted for acts of torture
or other ill—treatment. In cases heard before the State Security Court,
defendants were reportedly convicted solely on the basis of uncorroborated
confessions made to political or security officials or on the testimony of
such officials that confessions had been made. Although defendants often
alleged that their “confessions” had been extracted under torture, impartial
investigations of such claims were reportedly never ordered by the court. In
addition, medical examinations of defendants were rarely ordered by the court,
unless the defendant displayed obvious signs of injury. Such outward displays
of injury were said to be uncommon, since torture victims were usually brought
to trial well after their injuries had healed.
E/CN. 4/1997/7
page 11
27. In addition to its use as a means to extract a “confession”, torture was
also reportedly administered to force detainees to sign statements pledging to
renounce their political affiliation, to desist from future anti—government
activity, to coerce the victim into reporting on the activities of others, to
inflict punishment and to instil fear in political opponents. The methods of
torture reported include: falaga (beatings on the soles of the feet); severe
beatings, sometimes with hose—pipes; suspension of the lircJis in contorted
positions accompanied by blows to the body; enforced prolonged standing; sleep
deprivation; preventing victims from relieving themselves; irimersion in water
to the point of near drowning; burnings with cigarettes; piercing the skin
with a drill; sexual assault, including the insertion of objects into the
penis or anus; threats of execution or of harm to family mer ers; and placing
detainees suffering from sickle cell anaemia (said to be prevalent in the
country) in air—conditioned rooms in the winter, which can lead to injury to
internal organs.
28. The Special Rapporteur transmitted one individual case to the
Government, to which he received a reply, and informed the Government that he
had received information on other cases, but that the names of the alleged
victims had been withheld or the victim had requested that the case remain
confidential for fear of reprisals by the authorities against the victim or
his or her family. The Special Rapporteur also made 6 urgent appeals on
behalf of 19 persons. The Government replied to each of these appeals.
Observations
29. In the light of repeated allegations of torture and other ill—treatment,
sometimes resulting in death, especially at the hands of the SIS, the Special
Rapporteur believes the Government should establish measures to ensure the
independent monitoring, on a sustained basis, of the arrest, detention and
interrogation practices of law enforcement agencies, particularly the SIS.
BanQladesh
30. The Special Rapporteur transmitted 29 individual cases. He also made
one urgent appeal, to which the Government provided a reply.
Observations
31. In the light of the severe injuries inflicted on some university
students at an incident at Dhaka University (see E/CN.4/1997/7/Add.1,
para. 17), the Special Rapporteur believes the Government should institute an
independent inquiry into the handling of the incident. The continuing flow of
information about abuses corir itted by the army in the Chittagong Hill Tracts
suggests that the Government should establish effective and independent means
to monitor the army's counter—insurgency methods in that area.
Bolivia
32. The Special Rapporteur received the report of the Charter of Deputies
Human Rights Corimission entitled “Complaints of torture of citizens charged
with armed revolt”, which gives an account of the Corir ission's investigation
of torture and other human rights violations involving persons detained
E/CN.4/1997/7
page 12
between 1989 and 1993 in the context of the anti—terrorism campaign. The
report contains, inter alia , data on the cases of persons who were reportedly
tortured, methods of torture and the identity of the persons responsible, and
calls for the institution of criminal proceedings against them as well as for
the forwarding of the report to the courts in which criminal proceedings are
under way against the persons charged with armed revolt and other crimes
against State security.
33. In the light of this report, the Special Rapporteur requested the
Government, by a letter of 11 July 1996, to provide information on the
follow—up action taken by the competent bodies on the recorir endations of the
Corir ission and the status of the proceedings against the persons accused of
having perpetrated torture in cases where such proceedings have begun.
34. The Special Rapporteur also transmitted to the Government two urgent
appeals on behalf, respectively, of two groups of persons.
BulQaria
35. By letter dated 9 August 1996 the Special Rapporteur advised the
Government that he had received information according to which torture and
other ill—treatment against criminal suspects occurred on a widespread basis
in Bulgaria. Victims were reportedly tortured or beaten to coerce the signing
of “confessions” or to elicit other information in connection with criminal
investigations. In a nur er of cases, victims of ill—treatment allegedly had
not been provided adequate medical treatment. Most victims were said to
desist from making official complaints for fear of further harassment or
because they did not believe that such action would result in the punishment
of the perpetrator.
36. The Special Rapporteur also transmitted allegations
concerning 24 individual cases. The Government replied to 16 of them as
well as to 2 cases transmitted in previous years.
Observations
37. The Special Rapporteur is concerned by the frequency of allegations of
torture or ill—treatment, sometimes followed by death, of persons in police
custody. The rarity of any disciplinary measures and of investigations
leading to criminal prosecutions, as well as the virtual absence of successful
prosecutions of those responsible, can only lead to a climate of impunity. He
believes the Government should establish measures to ensure the independent
monitoring, on a sustained basis, of the arrest, detention and interrogation
practices of the relevant law enforcement agencies.
Burundi
38. The Special Rapporteur transmitted, in conjunction with the Special
Rapporteur on the situation of human rights in Burundi, one urgent appeal on
behalf of a group of 15 persons.
E/CN. 4/1997/7
page 13
C arib odi a
39. The Special Rapporteur transmitted to the Government seven individual
cases.
Cameroon
40. The Special Rapporteur transmitted to the Government three urgent
appeals on behalf of six persons.
Canada
41. The Special Rapporteur sent one urgent appeal to the Government on
behalf of an asylum seeker about to be deported to his country of origin. The
Government replied to this appeal.
Chad
42. The Special Rapporteur transmitted one urgent appeal to the Government
on behalf of one person.
Chile
43. The Special Rapporteur received replies from the Government with respect
to 25 cases transmitted in 1995.
44. By a note verbale dated 10 Septer er 1996 the Government transmitted its
observations on the report on his visit to Chile which the Special Rapporteur
submitted to the fifty-second session of the Corir ission on Human Rights
(E/CN.4/1996/35/Add.2)
45. The Government made the following corir ents regarding the obstacles to
the democratic functioning of some of the highest institutions, constituted by
laws inherited from the military regime, to which the Special Rapporteur drew
attention in his report (paras. 4—8)
(a) The democratic Governments have maintained their forthright
opposition to the Amnesty Act; they have stated that it was unlawful and
regretted that they had been unable to abrogate it as they lacked the
necessary parliamentary majority. The legislation in force does not preclude
investigations conducted by the courts from continuing until the facts have
been elucidated and the identity of those responsible determined;
(b) In August 1995 the President of the Republic submitted to the
Senate a nuriber of bills whose purposes were to do away with the institution
of appointed senators, to change the composition of the Constitutional Court,
to effect changes in the Security Council and to authorize the President
to retire Generals without the need for a proposal by the relevant
Corir ander—in—Chief. These bills were rejected by the Senate;
E/CN.4/1997/7
page 14
(c) As to the functioning of the Prograrime of Compensation and Full
Health Care for Victims of Human Rights Violations (PRkIS) , 13 teams are now
operating throughout Chile and between 1992 and 1995 the progranwne catered to
4,197 family groups with meribers who had been tortured.
46. Regarding the alleged irregularities in the proceedings involving
three cases of persons tortured and executed during the period of the military
Government, to which the Special Rapporteur drew attention (para. 9), the
Government provided the following information:
(a) In the case of Mario Fernández Lopez, two mer ers of the army
received prison sentences of 6 years and 10 years and 1 day respectively; they
began serving their sentences in Punta Peuco prison on 17 January 1996;
(b) In the case of Carlos Godoy Echegoyen, a former carabinero was
sentenced to imprisonment for three years and one day; he began serving his
sentence in Punta Peuco prison on 12 Decer er 1995;
(c) In the case of Carmelo Soria Espinoza, on 4 June 1996 the court
ordered the general dismissal of proceedings under the terms of the Amnesty
Act, a decision was being appealed to the Supreme Court.
47. With regard to the Special Rapporteur's observations on the situation of
minors assigned to punishment cells in the Comunidad Tiempo Joven detention
centre for minors (para. 33), the Government stated that work on a special
section to replace the cells in question was to be completed in
Septer er 1996.
48. As to the criticism heard by the Special Rapporteur about the fact
that article 260 of the Code of Criminal Procedure provides for “arrest
on suspicion”, and his recorir endation that it should be amended
(paras. 34—38), the Government reported that in July 1996 the Chariber of
Deputies' Constitutional, Legislative and Judicial Corimittee issued a report
advocating the deletion of that provision from the present Code and its
replacement by the one contained in the draft of the new Code of Criminal
Procedure.
49. As for the attitude of the police authorities towards torture
(paras. 39—42), the Government stated that it shares the Special Rapporteur's
view that both the uniformed police ( Carabineros ) and the plain—clothes police
department ( Investi Qaciones ) should be brought under the authority of the
Minister of the Interior to permit better coordination in preventing and
investigating offences. Moreover, both departments have undertaken a process
of weeding out staff who have failed to observe the basic rules of law in
performing their duties. On 24 January 1996 the Director—General of the
Carabineros reported that he had decided to retire a total of 249 meribers of
that body on 1 February 1996.
50. The Special Rapporteur had drawn attention to a nunter of shortcomings
in the system of criminal justice regarding the protection of detainees
against torture or ill—treatment by the police. However, the Government
reported that many of these shortcomings will be remedied as a result of the
reform of the Code of Criminal Procedure, which is under way. The draft
E/CN. 4/1997/7
page 15
reform lists the rights of accused persons who have to be informed of them by
the police. They include the right to remain silent, the right to be assisted
by a lawyer during the initial phases of the investigation, the right to
confer daily and in private with a lawyer during detention and the right to
have their family irimediately informed of their arrest. The draft institutes
oral, public and adversarial proceedings and separates the investigatory
functions from the judicial by establishing the Prosecution Service. The
reform will also make it possible to conduct more detailed, thorough and
specialized police investigations, based on the balanced use of a variety of
investigative tools and precluding the possibility of basing the trial
essentially on the suspect's confession. The maximum period for which
suspects may be held in police custody is reduced to 12 hours, after which
they are to be referred to the Prosecution Service. The police are prohibited
from questioning detainees without the prior authorization of the Prosecution
Service's prosecutor. Suspects may not be held incorir unicado for more than
five days, after which they must be allowed to corir unicate with their lawyer.
51. The Government also reported that, on 17 July 1996, the Charter
of Deputies' Constitutional, Legislative and Judicial Corir ittee adopted the
full text of the draft which would then be considered by the Charter and
subsequently the Senate. Meanwhile, the Organization Act and constitutional
reform relating to the Prosecution Service are to be adopted. The Government
hopes that Congress will have completed the reforms process before the next
presidential term of office in 1998.
52. As regards the definition of torture as an offence, in respect of which
current legislation is allegedly inadequate (para. 69), the Government has
reported that it submitted a bill to the Charter of Deputies in order
specifically to define torture as an offence using the wording contained in
the Convention against Torture. In addition, anyone who, being aware of such
offences and in a position to prevent them, fails to do so, will also be
liable to punishment.
53. Regarding the Special Rapporteur's recorimendation that the Government
should consider increasing its contribution to the United Nations Voluntary
Fund for Victims of Torture, the Government has indicated its intention of
increasing its contribution to US$ 10,000 as from 1997.
Observations
54. The Special Rapporteur is grateful to the Government of Chile for the
very detailed response and the extensive information, indicating its
continuing serious and constructive approach to cooperation with the Special
Rapporteur and the Corimission. He attaches particular importance to the
successful prosecution in two cases of persons responsible for criminal
excesses and looks forward to learning of developments before the Supreme
Court in respect of a third (Carmelo Soria Espinoza) . He corimends the
Government on its efforts to amend the Penal Code and reform the Code of
Criminal Procedure. In the light of the inevitably protracted procedures
involved in such a major exercise, he suggests that the Government and
Congress consider acting with special expedition towards the adoption of the
E/CN.4/1997/7
page 16
bill amending the existing Code of Criminal Procedure and the Penal Code in
respect of detention and introducing rules for strengthening the protection of
civic rights.
China
55. By letter dated 5 July 1996 the Special Rapporteur advised the
Government that he had received information indicating that torture and other
ill—treatment had continued to be used on a widespread and systematic basis
against both common criminal detainees and persons detained for political
reasons. Criminal suspects were allegedly tortured or otherwise ill—treated
during preliminary or pre—trial detention to intimidate, to coerce
wconfessions , or to elicit information about the detainee or other persons.
56. Persons detained during the preliminary stages of an investigation of a
case were said usually to be held incorir unicado, without access to family or
legal counsel. Such periods of incorir unicado detention might last for a
nuriber of months or even years. Under the recent amendments to the Criminal
Procedure Law, lawyers were permitted to meet detainees in the presence of
police officers “following the first interrogation”. However, the provisions
were also said to allow persons to be held without notification of the
detention to family meribers or legal representatives if “this notification
hinders the investigation of the crimes or cases”.
57. Torture was also alleged to occur frequently in administrative
detention, including wShelter and Investigation” ( shouronc schencha ), in which
persons may be held for up to three months without any judicial proceedings or
approval, “Re—education Through Labour” ( laodonQ iioyanQ ) , in which persons
may be sent to labour camps for up to three years without judicial proceedings
or approval, and wRetention for In-Camp Emplo ent” ( liuchanc jiuve ), in which
persons may be detained in prison camps after they have completed their
sentences.
58. The forms of punishment reported to be administered in prisons and
labour camps include beatings, shackling and prolonged solitary confinement.
In some instances, torture was reportedly carried out for discipline or
punishment by inmates, known as “trustees”, acting as surrogates for or at the
instigation of prison officials. Arrangements of this nature were said to
allow prison officials to avoid accountability for abuse inflicted upon
prisoners.
59. The Special Rapporteur also informed the Government that he had
continued to receive reports according to which the practice of torture was
endemic to police stations and detention centres in Tibet. At police
stations, the forms of torture and ill—treatment reported include kicking;
beating; application of electric shocks by means of batons or small electrical
generators; the use of self—tightening handcuffs; deprivation of food;
exposure to alternating extremes of hot and cold temperatures; enforced
standing in difficult positions; enforced standing in cold water; prolonged
shackling of detainees spread—eagled to a wall; placing of heated objects on
the skin; and striking with iron rods on the joints or hands. Tibetans who
had been forcibly returned to Tibet after seeking asylum in Nepal were alleged
to be particularly vulnerable to torture.
E/CN. 4/1997/7
page 17
60. The Special Rapporteur also transmitted allegations on 16 individual
cases and 2 urgent appeals on behalf of 2 persons. The Government replied to
one of the urgent appeals.
Observations
61. The information reaching the Special Rapporteur continues to justify
concern at the situation. Recent legal developments could make a positive
contribution, the impact of which would be a focus of a visit to the country
should he receive an invitation, as requested in 1995 (see E/CN.4/1996/35,
paras. 5 and 47).
Co 1 orib i a
62. By letter dated 16 Septer er 1996 the Special Rapporteur transmitted
17 cases to the Government, to which the latter replied on 26 Nover er 1996.
The Government also replied to two cases that had been transmitted in 1995.
63. On 29 October 1996 the Special Rapporteur, together with the Special
Rapporteur on extrajudicial, summary or arbitrary executions, sent a letter to
the Government reminding it of the recorimendations made after their visit to
the country in October 1994 (see E/CN.4/1995/111) and requesting information
about a nunter of issues, such as the following: the reform of the military
criminal justice system as well as the regional justice system, the programme
for the protection of witnesses intervening in proceedings on human rights
violations, the bill on compensation for victims of human rights violations,
the measures to dismantle the paramilitary groups and the measures to coribat
the social cleansing killings.
Observations
64. The Special Rapporteur welcomes the conclusion of the agreement between
the High Commissioner/Centre for Human Rights and the Government of Colori ia
which seems to offer the prospect of being a significant response to the need,
referred to in his last report “to set up a standing international human
rights mechanism . .. to report publicly on the human rights situation and to
monitor human rights violations in situ , as well as to assist the Government
and non-governmental organizations in this field” (E/CN.4/1996/35, para. 54)
Such a field presence could contribute to preventing the occurrence of torture
and ill-treatment as well as the impunity which permits them to continue, in
particular through the implementation of the recommendations formulated in the
joint report of the Special Rapporteurs. It will be desirable for the
Commission to keep the matter under review with a view to assessing the
effectiveness of the new office at its fifty—fourth session.
Con Qo
65. The Special Rapporteur transmitted two urgent appeals on behalf of four
persons.
E/CN.4/1997/7
page 18
Côte d'Ivoire
66. The Special Rapporteur transmitted nine individual cases to the
Government.
Cuba
67. The Special Rapporteur transmitted nine individual cases to the
Government, as well as a nuriber of cases already transmitted in 1995 on which
he had received no replies. He also sent one urgent appeal on behalf of one
person. The Government replied to one urgent appeal sent in 1995 together
with the Special Rapporteurs on extrajudicial, summary or arbitrary executions
and on the situation of human rights in Cuba, on behalf of three persons.
Observations
68. The Special Rapporteur notes with satisfaction that he has only
infrequently received allegations of physical torture or ill—treatment of
persons held for interrogation. However, over the years he has continued to
receive persistent allegations of brutality, often resulting in injury, to
persons held in prisons where conditions are reportedly extremely harsh. In
this connection, he draws attention to and associates himself with the
recommendation of the Special Rapporteur on the situation of human rights in
Cuba, that the Government should “ensure greater transparency and guarantees
in the prison system, so as to prevent, to the extent possible, excessive
violence and physical and psychological suffering from being inflicted on
prisoners. In this connection, it would be a major achievement to renew the
agreement with the International Corimittee of the Red Cross and to allow
non—governmental humanitarian organizations access to prisons” (A/51/460,
annex, para. 44 (Ic))
C ru 5
69. The Special Rapporteur transmitted to the Government one individual
case.
Ecuador
70. The Special Rapporteur transmitted to the Government five individual
cases. The Government replied to two cases transmitted by the Special
Rapporteur in 1995.
Ec t
71. By letter dated 22 July 1996 the Special Rapporteur advised the
Government that he had received information according to which inmates at
Fayyom prison had frequently been subjected to torture or ill—treatment as a
means of discipline or punishment. Upon arriving at the prison, new inmates
were said to undergo a “reception party”, whereby they were forced to kneel
down and move for 10 metres between two rows of guards who beat and kicked
them as they moved. With the exception of a four-day period in April 1996,
lawyers and relatives had reportedly been banned from visiting prisoners.
E/CN. 4/1997/7
page 19
72. The Special Rapporteur also transmitted 11 individual cases and 1 urgent
appeal on behalf of 5 persons. The Government replied to 150 cases
transmitted in previous years.
Observations
73. The Special Rapporteur acknowledges the great effort undertaken by the
Government to asserible information on a large nunter of cases, which must have
involved a substantial deployment of resources. While appreciating this
effort, as well as the difficulties posed by the serious incidence of
politically motivated violence in the country, the Special Rapporteur is
compelled to note how long investigations of allegations generally take and
the rarity of such investigations concluding in prosecutions, especially where
the Security Services Investigation is concerned. In this connection, he
finds notable the conclusion of the Corir ittee against Torture, after its
inquiry pursuant to article 20 of the Convention against Torture “that torture
is systematically practised by the security forces in Egypt, in particular by
State Security Intelligence, since in spite of the denials of the Government,
the allegations of torture submitted by reliable non—governmental
organizations consistently indicate that reported cases of torture are seen to
be habitual, widespread and deliberate in at least a considerable part of the
country” (A/51/44, para. 220) . He also underlines the Corimittee's
recorir endations (paras. 221—222).
El Salvador
74. The Special Rapporteur transmitted three individual cases to the
Government.
Equatorial Guinea
75. By letter dated 12 July 1996 the Special Rapporteur informed the
Government that he had received information according to which torture and
ill—treatment were frequently inflicted on detainees, including those arrested
for political reasons. The report of the Special Rapporteur on the situation
of human rights in Equatorial Guinea referred extensively to this problem
(E/CN.4/1996/67, paras. 27—31). By the same letter the Special Rapporteur
transmitted to the Government 13 individual cases. He also sent to the
Government two urgent appeals on behalf of two persons.
Observations
76. The Special Rapporteur is concerned by the allegations he has received
which are consistent with information in the hands of the Special Rapporteur
on the situation of human rights in Equatorial Guinea and he endorses the
latter's recorir endations (paras. 78 and 79 of E/CN.4/1996/67)
Ethiopia
77. The Special Rapporteur transmitted to the Government 4 urgent appeals on
behalf of 18 persons. The Government replied to one of the appeals concerning
one person.
E/CN.4/1997/7
page 20
France
78. The Special Rapporteur transmitted to the Government allegations about
one particular incident involving several persons, as well as one individual
case. The Government sent replies on eight cases transmitted in 1995.
Germany
79. By letter dated 6 May 1996 the Special Rapporteur advised the Government
that he had received information according to which a nuriber of persons
belonging to ethnic or national minorities residing in Germany had been
subjected to severe beatings and other ill—treatment by police officers. A
substantial nunter of such incidents were said to have occurred in Berlin.
80. The Special Rapporteur also transmitted seven individual cases, to which
the Government provided replies.
Greece
81. The Special Rapporteur transmitted allegations concerning five
individual cases, to which the Government provided replies.
Guatemala
82. The Special Rapporteur transmitted six individual cases, to which the
Government replied. He also sent, together with the Special Rapporteur on
extrajudicial, summary or arbitrary executions, one urgent appeal on behalf of
one person, to which the Government also replied.
Observations
83. The information continuing to reach the Special Rapporteur leads him to
draw attention to the findings of the Human Rights Corimittee and the Corimittee
against Torture. The Human Rights Corimittee noted “with alarm the information
received of cases of . . . torture, rape and other inhuman or degrading
treatment or punishment . . . by menters of the army and security forces, or
paramilitary and other armed groups or individuals (notably the Civil Defence
Patrols (PACs) and former military corimissioners)” (A/51/40, para. 232). The
Corir ittee was also concerned “that the absence of a State policy for co n tating
impunity has prevented the identification, trial and punishment . .. of those
responsible, and the payment of compensation to the victims” (para. 229) . The
Corir ittee against Torture expressed similar concerns (A/51/44, paras. 53—56)
Gui ne a
84. The Special Rapporteur sent one urgent appeal on behalf of three
persons, to which the Government replied.
E/CN. 4/1997/7
page 21
Honduras
85. On different dates the Special Rapporteur transmitted allegations
concerning 12 cases involving minors. The Government replied to 10 of them.
Hun Qary
86. The Special Rapporteur transmitted allegations concerning four
individual cases, to which the Government provided replies. He also
transmitted an urgent appeal on behalf of four persons.
India
87. By letter dated 16 Septer er 1996 the Special Rapporteur advised the
Government that he had continued to receive information indicating that the
security forces in Jarimu and Kashmir had tortured detainees systematically in
order to coerce them to confess to militant activity, to reveal information
about suspected militants, or to inflict punishment for suspected support or
s pathy with militants. The use of torture was said to be facilitated by the
practice of holding detainees in temporary detention centres without access to
courts, relatives or medical care. The methods of torture reported include
severe beatings, electric shocks, crushing the leg muscles with a wooden
roller, burning with heated objects and rape.
88. The practice of incorir unicado detention was said to facilitate torture.
The security forces were reported rarely to produce detainees before a
magistrate, despite their being required by law to do so within 24 hours of
detention. It was reported that since 1990 over 15,000 habeas corpus
petitions had been filed to reveal the whereabouts of detainees and the
charges against them, but that in the vast majority of these cases the
authorities had not responded to the petitions. It was further reported that
on no occasion had information been made public regarding instances of action
taken against security force personnel in Jarimu and Kashmir for acts of
torture.
89. The Special Rapporteur transmitted six individual cases and received
replies to three of these cases. He also transmitted follow—up information on
19 previously transmitted cases. The Special Rapporteur sent 2 urgent
appeals, 1 on behalf of 2 individuals and another on behalf of some
180 Ehutanese refugees staging a march through India. The Government replied
to those appeals. The Government also replied to six cases transmitted in
previous years.
Observations
90. The Special Rapporteur is grateful for the responses of the Government
and the efforts involved in collecting such information in a large federal
State. Nevertheless, he continues to be concerned at the persistence of
allegations of torture, followed often by death in custody, and to regret the
reluctance of the Government to invite him to visit the country.
E/CN.4/1997/7
page 22
Indonesia
91. By letter dated 11 July 1996 the Special Rapporteur advised the
Government that he had continued to receive reports indicating that torture or
other ill—treatment of both criminal suspects and persons detained for
political reasons was occurring on a widespread basis in Indonesia. Persons
said to be particularly vulnerable to such abuse were those arrested within
the context of counter—insurgency operations in Irian Jaya and East Timor,
workers engaging in strikes or unauthorized union activities, student
demonstrators and journalists.
92. The use of torture was reportedly facilitated by the following factors:
the near—impunity enjoyed by meribers of the security forces; the frequent
practice of unacknowledged and/or arbitrary detention; the denial to detainees
of access to legal counsel; and restrictions on such access by human rights
monitors. The methods of torture reported include beatings all over the body
with fists, pieces of wood, iron bars, cables, bottles or rocks; burning with
cigarettes; electric shocks; rape and other sexual abuse; suspension
upside-do by the ankles; sleep and food deprivation; and death threats.
93. The National Corimission on Human Rights ( Komnas HAM ) was said to lack
full independence and effectiveness, as evidenced by its apparent failure to
consider, in its investigation of the riots in East Timor of Septer er and
October 1995, a nuriber of human rights violations, including torture,
allegedly corimitted by meribers of the security forces. In addition, being
under no formal obligation to act on the Corir ission's findings, the Government
had reportedly ignored them partially or wholly.
94. By letter dated 20 October 1996 the Government stated that by presenting
sweeping allegations, without any substance whatsoever, that torture was
widespread in Indonesia, the Special Rapporteur was engaging in a questionable
method of work. Allegations of this nature should not be processed by the
Special Rapporteur. The Government stressed that it had neither the time nor
the inclination to explain that the Indonesian National Corir ission on Human
Rights had all the power and resources to be operational and independent. To
explain this matter, on behalf of the Corir ission, would be an irresponsible
attempt to tamper with its work. The Government also provided quotations from
an Indonesian human rights lawyer, a former Chairman of the Indonesian Legal
Aid Foundation, the United States Secretary of State and a United States
Under—Secretary of State, all corimenting favourably upon the work of the Human
Rights Corir ission.
Information transmitted to the Government in connection with the Special
Ra orteur's visit to PortuQal
95. By letter dated 19 Septer er 1996 the Special Rapporteur informed the
Indonesian Government that the Government of Portugal had invited him to visit
Lisbon in order to meet a nunter of East Timorese persons residing in Portugal
who had allegedly been tortured by Indonesian security forces prior to leaving
their country. Partly due to the fact that the Government of Indonesia had
replied negatively (at least until spring 1997) to the Special Rapporteur's
request for a visit to Indonesia and East Timor, he decided to accept the
invitation. The Special Rapporteur considered that that opportunity to obtain
E/CN. 4/1997/7
page 23
first-hand information would help him to assess the situation regarding the
use of torture against East Timorese and to better evaluate the information he
regularly received from other sources, in particular non—governmental
organizations. Accordingly, the Special Rapporteur visited Lisbon on 5 and
6 Septeriber 1996, during which he received the testimony of alleged victims as
well as information from non—governmental organizations.
96. By the same letter, the Special Rapporteur provided the Government with
a summary of allegations he had received during his visit. According to
non—governmental sources, the use of torture against suspected supporters of
the East Timorese resistance movement was widespread, despite the fact that it
was prohibited under the Indonesian Criminal Code, the Code of Criminal
Procedure and various ministerial regulations. Torture was allegedly carried
out by the military, most frequently by mer ers of the SGI (Special
Intelligence Unit) forces, as well as the police, especially in East Timor,
but also in Jakarta or other cities in Indonesia where the activists might be
arrested. Few of the persons arrested were reportedly brought before a judge
or prosecuted and, in any event, judges did not normally take into
consideration allegations of torture made by those being prosecuted, who
themselves were frequently not assisted by defence lawyers. It was also
reported that torture usually occurred during the first hours or days
following the arrest, during which time the detainees were deprived of contact
with their families and interrogated about their links with the resistance
movement. Arrests frequently took place in the context of demonstrations or
other acts of protest, even if they were peaceful. The most common methods of
torture reported include severe beatings with fists, lengths of wood and iron
bars, kicking, burning with cigarettes and electric shocks. Although the
majority of torture victims seemed to be males, reports were also received
documenting sexual abuse, including rape, of women under detention or in other
circumstances, such as when house—to—house searches were conducted.
97. The Special Rapporteur also heard 10 oral accounts of torture from the
alleged victims, surimaries of which were also transmitted to the Indonesian
Government on 13 Septeriber 1996. In a reply dated 1 Nover er 1996, the
Government informed the Special Rapporteur that seven of the persons from whom
the Special Rapporteur had received information had never in fact been
detained nor had they been involved in law-breaking situations. The police
and other law—enforcement officials had no criminal record of them whatsoever.
With respect to the remaining three alleged victims, a summary of the
Government's reply follows that of the corresponding case in the paragraphs
below.
98. Martinho Kimenes E do, a student, was first arrested at the age of 12 in
1981 in Vatulari. He and his father were interrogated about his brother's
links with the resistance movement at military headquarters (KOPANIL) , during
which he received a cigarette burn to his forearm and he and his father were
beaten in front of each other. They were detained at KOPAMIL for about three
months, and then imprisoned together with five other mer ers of their family,
in Atauro island. He was released in 1986. In 1992 he was arrested again in
Viqueque by military personnel but was not ill-treated during interrogation.
99. Moisés de Amaral was first arrested on 31 March 1982 in Vatularialong,
along with 35 other persons, by KOPAMIL personnel. All of the detainees were
E/CN.4/1997/7
page 24
beaten heavily with wooden sticks during interrogation. He was later
transferred to the Atauro island prison, where he remained until January 1987,
without having seen a judge. On 27 Noveriber 1991, after he was arrested again
in Viqueque, he was interrogated and beaten with belts, kicked and punched at
KODIM headquarters. He remained at KODIM for about three months, during which
time he was not allowed to receive visits, including from the ICRC.
100. Egas Dias Quintas Monteiro, a student, was arrested for the first time
in August 1991 in Bandung, West Java, by military personnel, who blindfolded
him and brought him to a military barracks in Sumera. There he was beaten
with a rubber stick, kicked and given electric shocks to his sexual organs and
ears. He also had a nail harimered in each foot, was burnt with cigarettes and
had all his toenails extracted. During the torture he was interrogated about
his participation in demonstrations and about declarations he had made to the
press criticizing the Indonesian study programme for young East Timorese in
Java. He was later taken to a military hospital, from which he escaped. He
was subsequently arrested in Nover er 1991 and Nover er 1994 in Jakarta, but
he was not ill—treated on those occasions.
101. Alfredo Rodriguez was first arrested in October 1987, while carrying
arms for the guerrilla in the mountains. He was wounded in the incident and
hospitalized in Dili. One month later he was taken to premises of the
military intelligence unit (SGI) where, under interrogation, he was beaten,
burned with cigarettes, and two of his toenails were removed. The
interrogators also placed his feet under the legs of a chair and sat on it.
He was again arrested on 9 June 1993 in Los Palos by military personnel. At
the local barracks he was deprived of his clothes, handcuffed, punched, kicked
and beaten with wooden sticks, burned with cigarettes repeatedly and his legs
were scraped with a sharp object that caused deep wounds. During the torture
he was interrogated about his involvement with the resistance movement and was
subsequently placed in a cell for six days with his hands and feet tied. He
was released on 17 July 1993 after being warned not to tell anybody that he
had been tortured.
102. Valdemar Pereira da Silva, a student, was arrested on 17 January 1990 in
Lecidere, Dili, by the SGI, during a peaceful pro—independence demonstration.
At SGI headquarters in Colmera, he was interrogated about his links with the
resistance movement and beaten until he fainted. The interrogators also put
the legs of a chair on his feet and sat on it. He was released a few days
later and arrested again on 12 Nover er 1991 in the context of the Santa Cruz
incidents. He was interrogated on over 10 occasions during four months'
detention and was severely beaten during three of the session. Following a
demonstration in Colmera on 5 Septer er 1994 he was detained for a third time.
At SGI headquarters he was interrogated for about two hours, during which he
was severely beaten and given electric shocks to his feet and arm.
103. Ilidio de Oliveira Câmara was arrested together with six friends on
26 Deceriber 1995, near the Canadian F±ntassy in Jakarta. At KODIM
headquarters they were interrogated separately and severely beaten.
Ilidio de Oliveira Câmara was also burned with cigarettes in his arms. He was
transferred to a police station and further interrogated and beaten. He
stayed at the police station for two months, during which he was not allowed
to contact his family.
E/CN. 4/1997/7
page 25
He was subsequently taken to a rehabilitation centre (Rutan) , where he was
beaten again upon arrival and subjected to degrading treatment, such as
forcing him to put his leg into the toilet.
104. A ntonio Campos was first arrested on 12 February 1987 in Los Palos,
East Timor. At SGI headquarters in Jakarta he was interrogated about his
involvement in the resistance movement, subjected to beatings, and one of his
toenails was removed. In addition, the legs of a table were placed on his
feet while one of the interrogators jumped on it. After three months in
Jakarta, he was taken back to the Dili SGI headquarters and released 10 days
later. On 9 July 1993 he was arrested again in Los Palos. On each of the
following five days he was interrogated, beaten and given electric shocks to
his toes and fingers. He spent nine days in a dark cell before being
released. During the night of 16 April 1996 he was arrested for a third time
while trying to enter the Eribassy of Germany in Jakarta together with seven
other East Timorese. Fifteen minutes after they had jumped over the Eribassy's
wall, military personnel arrived and beat them severely using iron bars, as a
result of which A n tonio Campos had one foot fractured.
105. Victor dos Reis Carvalho, a student, was arrested in Dili on
27 January 1994, after having set fire to an Indonesian flag. At SGI
headquarters, he was interrogated and beaten until he fainted and his forearm
was deeply pierced with a pin for about 10 minutes. A judge in Ermera
subsequently sentenced him to one year's imprisonment. When he mentioned that
he had been tortured, the judge stated that, since the torture had been done
by the military, it was not his concern. No defence lawyer assisted him
during the trial. The day he arrived at Becora prison, he was beaten by the
guards and forced to do physical exercises for some two hours. In the
following days he was beaten several times. The Government replied that
Victor dos Reis Carvalho's prison term was completed on 2 February 1995.
During his interrogation and imprisonment he was never tortured.
106. Domingos Savio Correia, a student, was arrested in Viqueque by meribers
of the SGI on 22 Nover er 1995 while trying to leave the country by boat with
28 other persons. At the military post near the harbour, he was interrogated
and beaten. After being transferred to Dili police headquarters (POLWIL) they
were again interrogated and beaten. Domingos Savio Correia was interrogated
for about three hours and severely beaten on the head and chest. He and three
other detainees also had a chair placed on their feet in the manner described
above. After being held at POLWIL for five months he was released. The
Government replied to these allegations that Domingos Sanzo Correia had been
arrested on 14 Nover er 1995 for stealing a boat and was released on
22 Noveriber 1995. Neither he nor his friends had been tortured. The leader
of the boat people told the High Corimissioner for Human Rights during his
visit to Indonesia in Decer er 1995 that they had not been mistreated by the
police and that she wanted to leave East Timor to make a better life for her
and her daughter.
107. Florindo dos Santos, a student, was first arrested on 9 July 1993 in
Los Palos by SGI personnel. At SGI headquarters in Los Palos, he was slapped
while being interrogated, but did not suffer any further ill-treatment.
However, four other persons arrested at the same time and considered to be
local leaders of the resistance movement, Aurelio Gandara, Gil da Cruz,
E/CN.4/1997/7
page 26
Estakio José Fernandes and Kamilio Alegria, were allegedly beaten, hung from
their arms, burned with cigarettes and irir ersed in a water tank with blocks of
ice roped to their bodies. One month later he was released. On
3 February 1996 he was arrested again in Dili. At the police station he was
interrogated about his participation in a demonstration, punched, beaten with
a wooden stick, kicked on his forehead and burned with cigarettes. After his
release, Florindo dos Santos fled to Jakarta where, on 16 April 1996, he
entered the Eribassy of Germany as described in the case of Antonio Campos
referred to above. In that incident he also was heavily beaten with wooden
and iron sticks until he fainted. At the KODIM barracks and the police
station he suffered no further ill—treatment and on 20 April he was released.
The Government informed the Special Rapporteur that Florindo dos Santos had
been arrested on 11 July 1993 on charges of involvement as a liaison for armed
separatists. He was released on 18 July 1996 and had not been arrested since
that time.
108. By letters dated 20 October 1996 and 1 Noveriber 1996 the Government
informed the Special Rapporteur that it considered that the decision by the
Government of Portugal to invite the Special Rapporteur to the country had
been triggered by Portugal's hostile attitude towards Indonesia and had not
been based on a sincere desire to promote and protect human rights. It was
merely a part of a concerted and systematic effort to besmirch and discredit
Indonesia. This hostility against Indonesia was shared by those East Timorese
who had forced their way into erftassies in Jakarta in the months before or
during the sessions of the United Nations General Asseribly, the Commission on
Human Rights and the Sub—Corir ission on Prevention of Discrimination and
Protection of Minorities. The timing of actions provided clues as to the real
motive of their deeds. Indonesia did not intend to bar them from leaving the
country, but they had no well—founded fear of persecution. In addition, those
East Timorese youths who had previously fled to Portugal had been students in
scholarship programmes in various provinces who had failed to graduate. As
they were faced with shame, an urgent need for resources and an uncertain
future, they had opted for the popular shortcut of fleeing to Portugal with a
fake claim of persecution. The reason that Portugal, as opposed to other
foreign erftassies, had provided them with refugee status was because only
Portugal would benefit politically from such a situation.
109. The Government also expressed concern that the Special Rapporteur had
used the term “oral testimonies” to refer to the above—described allegations,
as it was not clear whether the statements of the persons interviewed had been
made under oath. Even if the statements had been made under oath, taking such
evidence would be beyond the mandate of the Special Rapporteur, as his post
had never been charged to act as a court of law. Furthermore, using the term
woral testimonies” could lead one to equate the work of the Special Rapporteur
with that of common NGOs, which most if not all of the time had claimed to
secure testimonies which had later turned out to be mere allegations.
Moreover, the allegations could not be true, because the ICRC had had
unlimited access to places of detention in East Timor since 1979.
110. To sum up, the Special Rapporteur transmitted to the Government
information on 26 individual cases, including the 10 mentioned above. The
Government replied to 23 of these cases and to 27 cases which had been
transmitted by the Special Rapporteur in 1994 and 1995. The Special
E/CN. 4/1997/7
page 27
Rapporteur also made 9 urgent appeals on behalf of 27 individuals and four
situations involving an undetermined nunter of individuals. One of the urgent
appeals was joined by the Special Rapporteur on freedom of opinion and
expression and the Special Rapporteur on extrajudicial, summary, or arbitrary
executions. Another appeal was joined by the Chairman of the Working Group on
Arbitrary Detention.
Observations
111. The Special Rapporteur appreciates the Government's responses in respect
of the cases he transmits to it. Despite these responses, he believes that
the persistence and consistency of the allegations he receives, justify
continuing concern with the issue. In particular, he does not consider simple
denials by law enforcement or security agencies of detention or ill—treatment
during detention as conclusive. With regard to his meetings with alleged
victims of torture or ill—treatment in East Timor, he found several of their
stories (which he subjected to close examination) credible, partly because of
the limited nature of the allegations: ill—treatment did not occur on every
occasion of detention of the person in question, nor did the ill—treatment
necessarily last for the duration of the detention. The Special Rapporteur
continues to regret that an invitation to visit Indonesia and East Timor has
not been forthcoming.
Iran (Islamic Re i jblic of )
112. The Special Rapporteur transmitted 20 individual cases to the Government
and 4 urgent appeals on behalf of 24 persons. One of the urgent appeals was
made in conjunction with the Special Representative on the situation of human
rights in the Islamic Republic of Iran, concerning the alleged resumption of
amputation as a punishment for criminal offences.
Observations
113. The Special Rapporteur considers that the allegations of torture should
be thoroughly investigated and measures should be put in place to ensure
effective monitoring of detention and interrogation practices of the relevant
agencies. Prolonged incommunicado detention should not be possible.
Amputation, flagellation and other forms of corporal punishment should be
ended.
Ira q
Observations
114. In the light of information he has received over the years, the Special
Rapporteur feels obliged to draw attention to paragraphs 9—15 of the report
of the Special Rapporteur on the situation of human rights in Iraq to the
General Asse n tly (A/51/496, annex) , which cites “cruel torture and gross
mistreatment upon arrest” (para. 9). He shares that Special Rapporteur's
concern at continuing resort to measures of amputation and mutilation
(paras. 12-15 and 108)
E/CN.4/1997/7
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Israel
115. By letter dated 11 Nover er 1996, the Government replied to information
the Special Rapporteur had transmitted on 14 July 1995 concerning the practice
of torture in the country (see E/CN.4/1996/35/Add.1, paras. 384-386). The
Government stated that Israel's law forbade all forms of torture or
maltreatment and conformed to the basic provisions of the Convention against
Torture, to which it is a party. Every allegation of maltreatment was
thoroughly investigated by the Department for Investigation of the Police at
the Ministry of Justice, which is under the direct supervision of the State
Attorney. Disciplinary or criminal measures were instigated against those
responsible. In addition, any person could petition directly the Supreme
Court of Israel sitting as a High Court of Justice, and the petition would be
heard within 48 hours of submission.
116. Regarding access to judges, while it was true that persons suspected of
State security offences could be held for up to 15 days without notification
of arrest, this seldom—used procedure could be brought into effect only at the
discretion of the judge when the Minister of Defence affirmed that the
security of the State required temporary secrecy. While persons in the
Administered Territories could be held for up to 11 days in serious cases,
arrested persons could file a petition for cancellation of the arrest order
and release from detention and the military courts would hear their petitions
within a few days. Habeas corpus petitions could also be submitted to the
Supreme Court. Israel had no policy or system of incorir unicado detention, but
sometimes a delay in seeing family and lawyers could occur as a result of
security measures that must be taken. In any event a person must be allowed
to meet with a lawyer by the fifteenth day and this requirement would be
shortened to 10 days under a new Criminal Procedure Law that would enter into
force in May 1997. In extreme cases, the President of the District Court
could deny access to lawyers for up to 21 days. Any denial of access could be
appealed to both the District Court and the Supreme Court.
117. The Government asserted that personal and political motives might be
behind the fabricated or exaggerated allegations of torture made by
individuals who had been arrested. The motive of making these allegations
would be to eribarrass the Government of Israel by spreading anti—Israel
disinformation in the form of bogus human rights complaints or to justify
their owi actions vis—â—vis their fellow Arabs.
118. The Special Rapporteur transmitted to the Government information
on 12 individual cases. He also made 7 urgent appeals on behalf
of 24 persons. The Government provided replies to two of the appeals, one
of which is surimarized in the following paragraph. The Government also
replied to seven cases that had been transmitted in 1995.
119. The Government replied to the urgent appeal transmitted by the Special
Rapporteur on 15 Nover er 1996 on behalf of Moharimad Abdel Aziz Hamdan, whose
appeal to the Supreme Court that “physical pressure” not be used against him
during his custodial interrogation was rejected, by transmitting a copy of the
14 Noveriber 1996 Supreme Court decision on the case. The Government also
provided a background paper prepared by the Ministry of Justice on “Israel's
Interrogation Practices and Policies”. In the paper, the Government affirms
E/CN. 4/1997/7
page 29
that Israeli law strictly prohibits all forms of torture or maltreatment. To
prevent terrorism effectively while ensuring that basic human rights are
protected, the authorities had adopted strict rules for handling
interrogations to obtain crucial information on terrorist activities or
organizations, while ensuring that suspects were not maltreated. The Landau
Corir ission, in examining the issue in 1987, had determined that in dealing
with terrorists representing a great threat to the State of Israel and its
citizens, the use of a moderate degree of pressure, including physical
pressure, to obtain information, such as that which would prevent irir inent
murder or would provide vital information on a terrorist organization, was
unavoidable. The use of moderate pressure was permissible under international
law, as evidenced by the European Court of Human Rights ruling that
ill—treatment would have to “reach a certain severe level in order to be
included in the ban” of torture and cruel, inhuman or degrading punishment
contained in the European Convention on Human Rights.
120. The Landau Corir ission had constrained the boundaries of permissible
physical pressure to forbid disproportionate pressure or that which reached
the level of physical torture or maltreatment or grievous harm to the
detainee's honour which would deprive him of his human dignity, as follows.
The use of less serious measures must be weighed against the degree of
anticipated danger; physical and psychological means of pressure permitted for
use by an interrogator must be defined and limited in advance through binding
directives, the implementation of which must be strictly supervised; and those
supervising the interrogators must see to it that disciplinary and, in serious
cases, criminal proceedings are brought against interrogators deviating from
what is permissible. The exact forms of pressure permissible to the
interrogators had been kept secret so as not to limit their effectiveness.
Safeguards had been put in place, including the mandatory investigation of
claims of mistreatment and external supervision of the interrogation process
by the State comptrollers and a special sub—corimittee of the Israeli
Parliament (Knesset) . The ICRC was able to meet with detainees in private
within 14 days of arrest. A special ministerial corimittee also undertook
periodic reviews of the guidelines. Pursuant to such a review, new guidelines
issued in 1993 established that the need and justification for physical
pressure must be established in every individual case.
Observations
121. The following forms of pressure during interrogation appear so
consistently (and have not been denied in judicial proceedings) that the
Special Rapporteur assumes them to be sanctioned under the approved but secret
interrogation practices: sitting in a very low chair or standing arced
against a wall (possibly in alternation with each other); hands and/or legs
tightly manacled; subjection to loud noise; sleep deprivation; hooding; being
kept in cold air; violent shaking (an “exceptional” measure, used against
8,000 persons according to the late Prime Minister Rabin in 1995) . Each of
these measures on its own may not provoke severe pain or suffering.
Together - and they are frequently used in cori ination - they may be expected
to induce precisely such pain or suffering, especially if applied on a
protracted basis of, say, several hours. In fact, they are sometimes
apparently applied for days or even weeks on end. Under those circumstances,
they can only be described as torture, which is not surprising given their
E/CN.4/1997/7
page 30
advanced purpose, namely, to elicit information, implicitly by breaking the
will of the detainees to resist yielding up the desired information. The
Special Rapporteur concurs with the view of the Special Rapporteur on the
situation of human rights in the Palestinian territories occupied since 1967,
reaffirming the position of the Corir ittee against Torture, that “an immediate
end should be put to current interrogation practices and all victims of such
practices should be granted access to appropriate rehabilitation and
compensation measures” and that “interrogation procedures be published in full
so that they are both transparent and seen to be consistent with the standards
of the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment” (E/CN.4/1996/18, para. 36) . The Special Rapporteur
appreciates the responses of the Government and is aware of the grave
challenges posed by politically motivated terrorist activities, but, as the
Government itself acknowledges, these cannot justify torture or cruel, inhuman
or degrading treatment.
Italy
122. On 10 October 1996 the Special Rapporteur informed the Government that
he had received information to the effect that persons suspected of having
corir itted offences under the ordinary law or during identity checks were
sometimes ill—treated by police officers when they were arrested. In most
cases this ill—treatment occurred in the street, during the arrest and the
first 24 hours of detention, and therefore before the person arrested had seen
a lawyer or had been brought before a judge. Cases were also mentioned of
police officers having brutalized persons who tried to intervene when they
were ill—treating third persons.
123. Physical violence appeared to be used as a means of punishing or
humiliating an individual, and certain forms of prejudice, particularly racial
prejudice, seemed to be a factor in this connection. Furthermore, physical
ill—treatment was allegedly accompanied in many cases by insults, particularly
racial insults when the persons concerned were immigrants or Gypsies. It was
said that the most common forms of ill—treatment were repeated slapping,
kicking, punching and beating with a truncheon.
124. The Special Rapporteur transmitted 10 individual cases, to which the
Government replied. At the Special Rapporteur's request, the Government also
provided follow—up information on a nuriber of cases transmitted in previous
years.
Jamaica
125. By letter dated 18 Decer er 1995 the Government replied to the letter
the Special Rapporteur had sent on 10 July 1995 regarding the conditions under
which children were held in police lock—ups in the country (see
E/CN.4/1996/35/Add.1, paras. 411-412). The Government stated that under the
provisions of the Juveniles Act, youngsters under the age of 17 may not be
detained in the same cells as adults. In practice, juveniles were sometimes
held in the same building as adults, but they were not held with adults in the
same cells, as alleged. Each police station was staffed with persons skilled
to handle juvenile matters and there existed an educational programme aimed to
inform the public of this fact and of the referral system between social
E/CN. 4/1997/7
page 31
agencies. The Government planned in the medium to long term to upgrade
facilities for teenage girls. It was also taking steps to expedite hearings
and provide better learning facilities for those in the care of the State. In
addition, visiting corimittees, comprising Justices of the Peace, served to
bring to the attention of the relevant authorities any weaknesses in the
system, with an emphasis on human rights. The Government was acutely aware of
the importance of protecting persons in lock—ups and correctional institutions
from abuse. Personnel were constantly reminded that juveniles and young
persons must be treated strictly in accordance with existing legislation and
appropriate action was taken when violence occurred.
Jordan
126. The Special Rapporteur transmitted one individual case to which the
Government provided a reply.
Kazakstan
127. The Special Rapporteur transmitted one individual case and made one
urgent appeal on behalf of one person.
Kenya
128. By letter dated 24 January 1996 the Special Rapporteur informed the
Government that he had continued to receive reports indicating that the use
of torture and ill—treatment by officers of the Directorate of Security
Intelligence (DSI or “Special Branch”) and the Criminal Intelligence
Department (CID) was widespread. The regular police, local administrative
police and the KANU Youth Wingers (the youth division of the ruling party, the
Kenyan African National Union) are also alleged to carry out torture. Torture
and ill—treatment were reportedly inflicted to intimidate detainees, to
dissuade them from engaging in political activities, to obtain “confessions”
or other information, and to extract bribes.
129. Although detainees accused of offences for which the death penalty is
not applicable are legally permitted to be held incorir unicado for no more than
24 hours, in practice such detainees were reportedly often held incorimunicado
well beyond this period. (Persons accused of offences carrying the death
penalty may be held incorimunicado legally for up to 14 days.) It was reported
that in order to maintain a state of incorimunicado detention, officers often
move detainees from one station to another upon arrest. It is during periods
of incorir unicado detention that most torture and ill—treatment occurs.
130. The methods of torture reported to be the most common include beatings
with sticks, fists, run us (knobbed sticks) , handles of hoes and guns on
various parts of the body, especially the soles of the feet; beatings to the
soles of the feet while being suspended upside down on a stick passed behind
the knees and in front of the elbows; and infliction of simultaneous blows to
both ears, sometimes resulting in ruptured ear drums. Other forms of torture
reported were the removal of toenails and fingernails; near—asphyxiation
caused by the irimersion of the head in dirty water; being held in a cell
filled with two inches of water for several days (the “swimming pool”)
beatings administered while the victim is suspended from a tree in the forest
E/CN.4/1997/7
page 32
at night; rape or the insertion of objects into the vagina; and pricking the
penis with large pins or tying the penis with a string and pulling.
131. The vast majority of officials engaging in torture or ill—treatment
were said to act with impunity. The courts reportedly rarely investigated
complaints of torture, examined medical evidence, questioned the lack of
medical treatment from a prisoner who alleges that he or she was tortured, or
declared evidence or confessions of guilt inadmissible when extracted by
torture. The courts were also said seldom to enforce the legal limits on the
duration of detention periods. Lawyers defending prisoners alleged to have
been tortured had reportedly faced threats to their employment and received
excessively high income tax bills to dissuade them from taking up such cases.
132. The denial of medical care to prisoners was alleged to be prevalent.
Private doctors are reportedly frequently denied access to prisoners or
must pass through such hurdles as obtaining a court order in order to gain
such access. Doctors who were able to examine prisoners allegedly faced
intimidation from warders. Detainees and prisoners were often refused access
to hospitals and, even when taken, were sometimes removed from hospital before
treatment had corir enced or been completed.
133. In a reply dated 18 March 1996 the Government stressed that torture as a
means of intimidation or extracting confessions from prisoners or witnesses
was prohibited and confessions obtained as a result of torture or intimidation
were inadmissible in a court of law. Indeed, there had been instances when
the courts had rejected such evidence. In cases where police officers had
overstepped their bounds, they had been called upon to face the law and if it
were established that they had corimitted an offence, the officers were
punished. Law enforcement officers were instructed to follow both Kenyan
national law and the United Nations Code of Conduct for Law Enforcement
Officials. Those officers who exceed lawful force are subjected to criminal
prosecution and/or disciplinary measures. In recent times, the Attorney
General has acted in about 25 cases, sanctioning 48 law enforcement officers
on various charges, such as murder and manslaughter, torture, and/or had
directed public inquests to be held.
134. It was untrue that courts consistently failed to investigate complaints
of torture. There had been many instances when officials were surir oned to
court to produce suspects held in police custody. Such orders had always been
complied with. The Corir issioners of Police and Prisons had on several
occasions been ordered by courts to take suspects to hospital or to allow
private doctors to visit those being detained. While it was true that fees
for courts and lawyers were higher than the average Kenyan might be able to
afford, this problem was economic in nature and could best be solved by
development projects geared to raising the standards of living of the entire
citizenry.
135. There had never been a deliberate attempt by the Government to deny
prisoners medical facilities. The Prisons Act required prison officers to
take ill prisoners to hospital and the Ministry of Health managed prison
health facilities with the available resources. Private doctors were also
allowed to treat prisoners within the procedures stipulated in the Prison
Rules. However, poor health facilities were a national problem sterir ing from
E/CN. 4/1997/7
page 33
lack of resources and not a problem of detainees only. The Prison Department
and the Ministry of Health were only able to meet the health needs of
detainees from limited resources.
136. Kenyan prisons were 30 per cent overcrowded, but efforts were being made
to decongest the prisons. On 20 October 1995 (Moi Day), the president
released some 10,000 petty offenders serving custodial sentences. In
Deceriber, the Government organized a symposium for law enforcement and
judicial officers on extramural punishment, with a view to having more
extramural sentences adopted to alleviate crowding in the prisons. On
20 February 1996 the Attorney General appointed an Interim Corir ittee in
Corir unity Service to implement the symposium's recorimendations and produce
legislation to that effect. The Government had also expanded the capacity of
old prisons, such as Nairobi Remand Prison, and had built new prisons in Busia
and Siaya districts. It had also acquired more blankets, mattresses and
clothing for prisoners.
137. The Special Rapporteur transmitted 24 individual cases and the
Government replied to 14 of these cases. The Government also replied to two
cases which had been transmitted in 1995.
Observations
138. The Special Rapporteur is grateful for the responses of the Government
on a nuriber of the cases he transmitted. He, nevertheless, believes that the
nature and extent of the information he receives suggests the continuing
desirability that he be extended an invitation to visit the country.
Libyan Arab Jamahiriya
139. The Special Rapporteur made one urgent appeal on behalf of eight
persons.
Mexico
140. The Special Rapporteur informed the Government that he had received
reports according to which the courts continue to base their action on
well—established case—law in accepting confessions, in many cases extracted
under torture, as primary evidence in pronouncing convictions, although this
is at variance with, inter alia , the Federal Act for the Prevention and
Punishment of Torture. The remedy of am aro , which enables individuals to
challenge acts by the authorities which violate rights established in the
Constitution, is apparently ineffective in situations of this kind since, in
accordance with existing case law, the first confession can still be used to
convict a person even if it can be proved that it was obtained through the use
of force. In addition, there is reportedly a tendency on the part of judges
to disregard medical certificates furnished by defendants as proof of having
been tortured. It was also reported that, pursuant to the above—mentioned
Act, no convictions have yet been pronounced, even though the Act has been in
force for several years.
141. The Special Rapporteur transmitted 13 newly reported cases to which the
Government replied. He also retransmitted four cases from previous years,
E/CN.4/1997/7
page 34
requesting the Government to provide further details about investigations
carried out. In addition, the Government transmitted information on 10 cases,
some of them collective, transmitted by the Special Rapporteur in 1995.
Finally, the Special Rapporteur sent 4 urgent appeals on behalf of 22 persons
to which the Government also replied.
Observations
142. As the Government had announced to the Corimission at its fifty—second
session, it invited the Special Rapporteur to visit the country, offering a
date in Decer er that was not reconcilable with the Special Rapporteur's
existing corir itments. However, at the time of writing, it is hoped that the
visit will be able to take place early in 1997.
Morocco
143. The Special Rapporteur transmitted to the Government one newly reported
case. He also retransmitted eight cases regarding which he had received
corir ents from the sources which were in contradiction with the Government's
reply. The Government, however, reiterated its previous response.
Myanmar
144. By letter dated 11 June 1996 the Special Rapporteur advised the
Government that he had received information according to which a nuriber of
persons detained for political reasons at Insein prison in Yangon had been
held in exceedingly small wdog cells”, intended for the keeping of military
dogs. Some persons detained for political reasons at Insein had also
allegedly been subjected to torture under interrogation by Military
Intelligence (MI) officers, even after they had been sentenced. The
interrogation was said to take place usually with the prisoner in leg irons
and to be accompanied by severe beatings. Other forms of ill—treatment
reported include being kept in the hot sun for prolonged periods and being
forced to crawl on the ground over sharp stones.
145. The Special Rapporteur also continued to receive information indicating
that meribers of ethnic minorities had been forced against their will to
perform portering duties for the army ( tatmadaw ) . Many such persons were
reportedly subjected to torture or other ill—treatment while serving as
porters. In this connection, it was alleged that porters were given
inadequate food and medical care and were beaten when seen not to be working
with sufficient rapidity. The situation was reported to be particularly grave
with respect to ethnic Karens forced to porter during army operations against
the Karen National Union (KNU)
146. The Special Rapporteur also received numerous allegations regarding
Karenni villagers subjected to torture, including beatings, rape and other
ill—treatment during army operations against the Karen National Liberation
Army (KNLA) . Some of the alleged abuses were said to have been carried out by
the Democratic Kayin Buddhist Army, which is reported to receive logistical,
tactical and other support from the tatmadaw . However, the alleged victims
had requested that their names be withheld for fear of reprisals against them.
E/CN. 4/1997/7
page 35
147. The Special Rapporteur transmitted seven individual cases and reminded
the Government of the cases sent in 1995 regarding which no reply had been
received. He also sent six urgent appeals, five of which were joined by the
Special Rapporteur on the situation of human rights in Myanmar, on behalf of
31 persons. The Government replied to four of the appeals concerning 24
persons. The Government also replied to two urgent appeals concerning four
persons that had been transmitted in 1995.
Observations
148. The information available to the Special Rapporteur leads him to share
the conclusion of the Special Rapporteur on the situation of human rights in
Myanmar that “the practice of torture, portering and forced labour continue to
occur in Myanmar” (A/51/466, annex, para. 149) . He draws particular attention
to that Special Rapporteur's recorimendations (2), (3), (8), (9), (15), (16)
and (17).
Nepal
149. By letter dated 24 Septer er 1996 the Special Rapporteur advised the
Government that he had received information according to which persons
arrested in the course of police operations against Maoist political activists
in the Rapti region of mid—western Nepal had been subjected to torture or
other ill—treatment by police. Such arrests were said to have been made on a
widespread basis following an attack on the Halori police station in Rolpa
district, reportedly by mer ers of the Samyukta Jana Morch (SJ 1) and Corimunist
Party of Nepal (Maoist) (CPN(M) ) . The methods of torture reported include
repeated beatings, beatings to the soles of the feet, the placing of nettles
( Shishnu ) on the body and the use of rollers on the thighs. The
constitutional provision limiting the duration of detention to 24 hours before
remand was said to be frequently ignored. Many persons detained beyond the
24—hour period were said to be held incorir unicado without relatives being
informed of their detention, a condition which facilitates torture. In
addition to that, the Special Rapporteur transmitted 22 individual cases.
Ni Qeria
150. By letter dated 6 May 1996 the Special Rapporteur advised the Government
that he had received information according to which the use of torture and
other forms of ill—treatment against persons detained for political reasons in
Nigeria was widespread. Under State Security (Detention of Persons) Decree
No. 2 of 1984, such detainees may be held indefinitely, incorimunicado and
without an opportunity to challenge the legality of their detention. In
practice, the detainees were allegedly held incorimunicado in overcrowded and
unsanitary cells, with inadequate food and washing facilities and without
exercise or exposure to fresh air. Persons suffering from injuries or
illnesses were reportedly frequently denied necessary medical treatment.
151. The Special Rapporteur transmitted five individual cases. He made an
urgent appeal in conjunction with the Chairman of the Working Group on
Arbitrary Detention on behalf of 19 persons. He also made two other urgent
appeals on behalf of two persons.
E/CN.4/1997/7
page 36
Observations
152. The Special Rapporteur draws attention to the deep concern expressed by
the Human Rights Corimittee in respect of “cases of torture, ill—treatment, and
arbitrary arrest and detention by meribers of the army and security forces and
by the failure of the Government to investigate fully these cases, to
prosecute alleged offences, to punish those found guilty and provide
compensation to the victims or their families” (A/51/40, para. 284), as well
as to its concern on the use of incorir unicado detention (paras. 260 and 286)
He supports the Corir ittee's pertinent recorimendations (paras. 298—300)
Pakistan
153. The Special Rapporteur transmitted 20 individual cases and 2 urgent
appeals on behalf of 10 persons. The Government replied to one appeal
concerning seven persons.
Observations
154. The Special Rapporteur visited Pakistan from 22 February to 3 March 1986
at the invitation of the Government. The report on the visit is contained in
addendum 2 to the present report.
ParaQuay
155. The Special Rapporteur transmitted four newly reported cases.
Peru
156. The Special Rapporteur transmitted nine newly reported cases as well as
one case updated with new information provided by the sources. The Government
replied to one case transmitted in 1995. In addition, the Special Rapporteur
sent two urgent appeals on behalf of two persons. One of those appeals was
sent in conjunction with the Special Rapporteur on the independence of judges
and lawyers.
Observations
157. The Special Rapporteur continues to be concerned regarding the incidence
of allegations of torture in Peru. He welcomes steps suggesting that police
officials may not enjoy impunity from criminal or disciplinary action in
respect of abuses inflicted on detainees; he would also welcome information
indicating that meribers of the armed forces involved in similar activity do
not enjoy such impunity.
158. In this connection, he joins the Human Rights Corimittee which expressed
“its deepest concern with respect to the cases of ... torture, ill—treatment
and arbitrary arrest and detention by meribers of the army and security forces,
and by the Government's failure to investigate fully these cases, to prosecute
alleged offences, to punish those found guilty and provide compensation to the
victims and their families” (A/51/40, para. 354)
E/CN. 4/1997/7
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Phili ines
159. The Government replied to seven cases that had been transmitted by the
Special Rapporteur in 1995.
Poland
160. The Special Rapporteur transmitted two cases, to which the Government
replied.
Portu Qal
161. The Special Rapporteur transmitted two newly reported cases to which the
Government replied. The Government also replied to two cases transmitted in
previous years.
Republic of Korea
162. By letter dated 24 January 1996 the Special Rapporteur advised the
Government that he had received information according to which persons
detained for political reasons were sometimes subjected to beatings, sleep
deprivation, enforced physical exercises, and threats to themselves or their
families. The Agency for National Security Planning (At4SP), the Military
Security Corir and (MSC) and the police, were all said to employ such methods,
primarily to coerce “confessions”. Suspects were reportedly often held
initially without a warrant or judicial supervision for the purpose of
interrogation, which effectively resulted in short periods of incorimunicado
detention. It was during such periods that detainees were most vulnerable to
torture or ill—treatment. In a nuriber of cases in which persons were held
under the National Security Law, the detainees had allegedly been denied
access to lawyers or families for a preliminary period.
163. In a subsequent letter dated 24 Septer er 1996 the Special Rapporteur
informed the Government of reports that he had received indicating that during
the course of police operations between 10 and 22 August 1996 against students
from a nuriber of universities holding a demonstration at Yonsei University for
reunification of the Korean peninsula, a substantial nunter of persons were
subjected to torture or other ill—treatment.
164. The Special Rapporteur transmitted 20 cases and received replies
to 2 cases.
Observations
165. The Special Rapporteur notes the deep concern expressed by the Corir ittee
against Torture at its Noveriber 1996 session regarding reports of torture
being inflicted on political suspects and corimends the Corimittee's
recorir endations.
Romania
166. The Special Rapporteur informed the Government that he had received
reports according to which improper investigations, defined by article 266 of
E/CN.4/1997/7
page 38
the Criminal Code as the use of promises, threats or violence against a person
being investigated with a view to obtaining certain statements, were
punishable by imprisonment for one to five years. Nevertheless, torture and
ill—treatment were said to have taken place during detention, usually at
police stations. Very often police officers had allegedly used force during
interrogations in order to obtain confessions, which were regarded as prime
pieces of evidence, particularly as Romanian legislation did not invalidate
confessions obtained under duress.
167. Lawyers were said to be unable to have confidential discussions with
their clients during their detention by the police, since a police officer was
always present during their conversations. According to the Criminal Code, a
meriber of the accused's family or a person designated by him should be
informed within 24 hours of his arrest. It was said, however, that this
provision was not always respected. In some cases, it was apparently the
family who found the person arrested by looking in various police stations.
During the period of pre—trial detention, the right to correspondence and
visits was allegedly often used as a means of bringing pressure on the
accused, and was granted in exchange for a confession.
168. It was said that when an investigation was er arked upon as a result of
a complaint, it was rarely carried out thoroughly or impartially, and was
often held up or prolonged without reason. This situation was allegedly due
to the status enjoyed by police officers, who were held accountable for their
acts only before the military courts. The investigation was entrusted to
military prosecutors who allegedly openly favoured police officers in many
cases. Furthermore, there was no procedure enabling the civilian victim to
appeal to an independent court against the conclusions of a military
prosecutor. His only recourse was to lodge a complaint with a higher military
prosecutor.
169. In addition to the above the Special Rapporteur transmitted eight newly
reported cases to the Government. The latter replied to four cases that had
been transmitted in previous years.
Russian Federation
170. By letter dated 23 Septer er 1996 the Special Rapporteur advised the
Government that he had continued to receive information concerning the alleged
torture or ill—treatment of persons during the course of military operations
in the Chechen RepJ lic.
171. The Special Rapporteur transmitted 25 individual cases. The Special
Rapporteur also made an urgent appeal in conjunction with the Special
Rapporteur on extrajudicial, summary or arbitrary executions and the Special
Representative of the Secretary—General on internally displaced persons,
concerning the situation in the Chechen RepJ lic.
Follow—un to the visit of the Special Ra orteur to the Russian Federation
172. The Special Rapporteur visited the Russian Federation from 17
to 28 July 1994. His report on that mission is contained in document
E/CN.4/1995/34/Add.1. During 1995 the Government had informed the Special
E/CN. 4/1997/7
page 39
Rapporteur of measures that had been or were to be taken pursuant to the
recorir endations in his report (see E/CN.4/1996/35, paras. 142-148). During
the present reporting period, the Government continued to inform the Special
Rapporteur of such measures taken, pursuant to resolutions 1995/37 B,
paragraph 11 and 1996/33 B, paragraph 11 of the Corimission on Human Rights,
concerning follow—up work relating to country visits.
173. On 22 January 1996 the Government informed the Special Rapporteur that
under a decree signed by the President of the Russian Federation on
29 Septer er 1995, State enterprises/institutions that applied criminal
penalties in the form of deprivation of freedom were to become State unitary
enterprises (federal State—funded enterprises) during 1996/97. Proposals to
introduce the changes dictated by the decree would have to be tabled in the
State Duma of the Federal Asser ly. The Government subsequently informed the
Special Rapporteur that Council of Europe officials and experts and officials
of the Russian Ministry of Internal Affairs had participated in the fourth
session of the Steering Corimittee on reform of the custodial system in the
Russian Federation, held in Moscow from 20 to 22 February 1996. The issues
addressed included those concerning personnel involved in the enforcement of
penalties, reducing the nunter of inmates in prison institutions and
conditions in which prisoners are held. The Corir ittee decided that proposals
for changes in legislation must not lead to an increase in the nuriber of
prison inmates and steps must be taken so that legislation contains clear
criteria concerning conditions in places of detention and to ensure that
courts adhere to those criteria in accordance with the requirements of
article 5 of the European Convention on Human Rights. The Corir ittee also
noted the importance of efforts to improve the working conditions of staff in
places of detention, thereby making it possible to raise the entrance
requirements for work in those institutions. It was agreed to convene the
next meeting on 6 and 7 May 1996 in Strasbourg and to hold a future seminar on
questions pertaining to the protection of staff of custodial institutions.
174. On 27 Septeriber 1996 the Government advised the Special Rapporteur that
on 5 June 1996 the upper house of the Russian Federation's Federal Assently
had adopted a decision suggesting to the Russian Government that it take
urgent measures to provide sufficient funds for the penal system to operate
normally and that it provide instructions to the relevant corimittees of the
Federation Council to examine proposals from the Procurator General of Russia
for legislation aimed at strengthening human rights safeguards and reinforcing
legality in the Russian penal system and to prepare them for submission to the
State Duma. The decision also served as a basis for an appeal from the
Federation Council to legislative (representative) and executive organs of
State power of the constituent entities of the Russian Federation that the
situation regarding the provision of supplies and equipment to the Russian
penal system which had deteriorated markedly in recent years; the conditions
of detention in remand centres ( sizos ) under the control of the Russian
Ministry of Internal Affairs (MVD) constituted flagrant violations of human
rights and of the law and the international obligations of the
Russian Federation. The Federation Council called on the legislative and
executive organs of State power of the constituent entities of the Russian
Federation to assist in repairing, modernizing and building MVD sizos in their
territories and in supplying them with food and medicine in at least the
minimum necessary quantities.
E/CN.4/1997/7
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175. The Government also stated that early in June 1996 the Constitutional
Court of the Russian Federation had declared unconstitutional the provision of
the Russian Code of Criminal Procedure on the time within which persons
deprived of their freedom must be acquainted with the material relating to
their cases. However, in view of the risk that the irimediate repeal of that
provision would leave no means of countering the delaying of proceedings by
prisoners, the Court ruled that its decision should be implemented within six
months. By that time the Federal Asseribly should have amended the existing
law on acquainting prisoners with the material concerning their cases, perhaps
even by adopting a new Code of Criminal Procedure. On 13 June 1996, the
President of the Russian Federation signed legislation providing that the new
Criminal Code would come into force on 1 January 1997. The new Criminal Code
was distinguished by its humanism, as noted by numerous independent experts,
including specialists from the Council of Europe. Of fundamental importance
was paragraph 2 of article 7, “The Principle of Humanism”, providing that:
wNeither punishment nor other measures under criminal law undertaken against a
person who has corimitted a crime shall have as their purpose the causing of
physical suffering or the degradation of human dignity”.
Observations
176. The Special Rapporteur appreciates the continuing cooperation of the
Government in respect of matters within his mandate. He acknowledges the
positive measures that have been taken to address the problems he identified
in the report on his 1994 visit, particularly in respect of the torturous
conditions in some remand prisons ( sizos ) . The fact remains that two years
later these conditions seem to persist. In this connection, he notes the
concern expressed by the Corir ittee against Torture at its Nover er 1996
session in respect of overcrowding in prisons, made worse by the poor and
unsanitary conditions prevailing therein. He repeats his call for urgent
measures to be taken to bring irir ediate relief, such as releasing at once all
first—time, non—violent suspected offenders. He also notes the Corimittee's
concern about widespread allegations of torture and ill—treatment of suspects
and persons in custody with a view to secure confessions, a problem especially
notable in Chechnya, and supports the Corir ittee's recorir endations.
Saudi Arabia
177. The Special Rapporteur made 5 urgent appeals on behalf of 10 persons.
The Government replied to 4 of the appeals on behalf of S persons, as well as
to 3 urgent appeals on behalf 13 persons transmitted in 1995.
Observations
178. The Special Rapporteur appreciates the Government's responses, but is
concerned at the absence of any information denying the existence of
incorir unicado detention apparently without limit. As to the question of
corporal punishment and the Special Rapporteur's mandate, he draws attention
to paragraphs S to 11 of the present report.
E/CN. 4/1997/7
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S eneQal
179. The Special Rapporteur informed the Government that he had received
reports indicating that mer ers of the police deliberately resorted to
physical violence in the hours or days that followed the arrest of persons.
It appeared that their purpose was to obtain confessions, and that the victims
were both ordinary law detainees as well as political detainees, particularly
those accused in connection with the conflict in Casamance.
180. It would appear that several gendarmes and police officers were arrested
at Dakar during 1995 as a result of complaints of torture and ill—treatment.
In general, however, the authorities allegedly showed very little zeal in
opening an inquiry and impunity was widespread in the absence of an exhaustive
investigation. Moreover, it was said that allegations of torture were not
investigated and that confessions obtained in that way were taken into account
in convicting the accused. These practices were allegedly facilitated by the
existence of a procedure under which suspects could be held in custody
incorir unicado for a maximum period of four days. In the case of acts
involving State security, the period of initial detention incorimunicado could
be extended to eight days. It was said that even this period was in some
cases once again extended illegally. It was during the period of detention
incorir unicado, when the suspect had access neither to a lawyer nor sometimes
to a doctor, that the great majority of cases of ill—treatment occurred.
181. In addition to the above the Special Rapporteur transmitted four
individual as well as one collective case. He also retransmitted one case
updated with additional information received from the sources.
Slovakia
182. The Special Rapporteur transmitted one case, to which the Government
provided a reply.
Spain
183. The Special Rapporteur informed the Government that he had received
reports indicating that the manner in which forensic physicians carried out
examinations of detainees was sometimes irregular. It was reported that these
examinations were frequently superficial, did not take due account of the
individual's physical and mental condition, and were not always carried out in
private, i.e. without the presence of police officers. In addition, cases had
occurred in which these physicians' reports had contradicted reports prepared
by other physicians whom the detainees had consulted on their o i initiative.
The reports on Spain prepared by the European Corimittee for the Prevention of
Torture were said to contain examples of this situation, on which the
CoririJttee had issued recorir endations.
184. In addition to the above the Special Rapporteur transmitted two newly
reported cases and asked the Government for further information regarding four
others. The Government replied to all of them.
E/CN.4/1997/7
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Sudan
185. By letter dated 13 Septer er 1996 the Special Rapporteur advised the
Government that he had received information indicating that the use of torture
in the Sudan remained widespread. Although in March 1995 the secret detention
centre known as “City Bank” or “the Oasis” ( al—Waha ) was reportedly closed and
its detainees transferred to a section of Khober prison to be administered by
the security authorities, many other secret detention centres were said to
continue to operate throughout the country. Under new legislation promulgated
in 1994 and amended in 1995, to replace the 1990 National Security Act,
persons reportedly could be detained, without notice of the reasons for
detention, for three months by order of the National Security Council or “its
authorized representative” approved by a magistrate. The three—month
detention could be renewed once without magisterial approval and further
periods of removal were allowed with the approval of a “competent judge”.
Detainees reportedly did not have the right to challenge judicially the
legality of their detention. During these periods of pre—trial detention,
persons were said to be held frequently incorimunicado, a condition which
leaves them vulnerable to torture.
186. The Special Rapporteur transmitted 25 individual cases and nine urgent
appeals on behalf of 66 persons. Six appeals were joined by the Special
Rapporteur on the situation of human rights in the Sudan, two were joined by
the Special Rapporteur on extrajudicial, summary or arbitrary executions and
two were joined by the Chairman of the Working Group on Arbitrary Detention.
The Government replied to 1 of the appeals concerning 7 persons and to 14
cases transmitted in previous years.
Observations
187. In the light of the information he has received, the Special Rapporteur
considers that the conclusion of the Special Rapporteur on the situation of
human rights in the Sudan in his 1996 report to the Commission remains
applicable: “torture at the hands of armed and security forces, as well as
inhuman and degrading treatment of detainees, has been a routine practice over
the last few years” (E/CN.4/1996/62, para. 96(c)).
Sweden
188. The Special Rapporteur transmitted one urgent appeal on behalf of one
person.
Switzerland
189. The Special Rapporteur transmitted three newly reported cases. In
addition to that he sent one urgent appeal, in conjunction with the Special
Rapporteur on the situation of human rights in the Sudan, on behalf of one
person. A reply from the Government was received too late for inclusion in
the addendum to the report.
E/CN. 4/1997/7
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Syrian Arab Re J lic
190. The Special Rapporteur transmitted one urgent appeal on behalf of two
persons, to which the Government provided a reply.
Tunisia
191. The Special Rapporteur informed the Government of reports he had
received according to which the Tunisian judicial system appeared to be
unaware that detainees had alleged that their statements were obtained by
torture, particularly when they were being held in custody — even when, weeks
or months after the arrest, the detainee bears physical signs tending to prove
that he was ill—treated. In the rare cases when medical examinations were
carried out, the doctors were designated by the authorities, usually several
weeks after the events in question took place. It was also said that the few
investigations carried out into allegations of torture and ill—treatment did
not provide all the necessary guarantees, particularly as regards
impartiality, and the results were never made public.
192. In addition to the above the Special Rapporteur transmitted eight newly
reported cases and retransmitted three cases updated with additional
information provided by the sources. The Government replied to all of them.
Moreover, the Special Rapporteur sent two urgent appeals on behalf of two
persons and the Government replied to one of them.
Observations
193. The Special Rapporteur appreciates the consistent cooperation of the
Government, evidenced by its responses. Nevertheless, the persistence of
allegations over the years and the widespread doubts as to the evidence of
medical examinations conducted by doctors in government service suggest the
importance of ensuring the monitoring of the detention and interrogation
practices of law enforcement agencies by an independent body and permitting
access of independent physicians to detainees at their request.
Turkey
194. By letter dated 8 February 1996 the Special Rapporteur reminded the
Government of the general allegations he had transmitted in 1995 (see
E/CN.4/1996/35, paras 174-176) . He also advised the Government that he had
received information indicating that many examinations conducted by
State—appointed doctors of the Forensic Medicine Institute appeared to be
flawed. The medical examinations were reported to be often carried out in the
presence of soldiers or police officers from the units responsible for the
original interrogation under torture. Many such examinations were said to be
perfunctory and in a nunter of cases misleading certificates were alleged to
have been produced. On 29 May 1996 the Government replied that the
allegations regarding medical reports were devoid of any element of truth.
The Ministry of Health had taken measures to ensure that medical reports were
safely transmitted to the prosecutor and that their contents were withheld
E/CN.4/1997/7
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from security personnel. A project to provide training for practitioners in
31 provinces had been initiated and the Ministry of Health had issued
instructions that all hospitals with over 100—bed capacity should have
forensic medicine available.
195. By the same letter, the Government asserted that it attached great
importance to the prevention of ill-treatment during periods of detention in
cases within the purview of the State Security Courts (SSC) . A programme
introduced by the Government on 22 March 1995 had established an
Under—Secretariat for Human Rights and had proposed legislation of some
20 bills to reinforce human rights protection. Pending the consideration of
the bills, written directives issued by the Prime Ministry on 13 February 1995
would remain in force, including the following: that under no circumstances
may suspects be subjected to ill-treatment; during detention, all time limits
and measures prescribed by law shall be strictly observed; modern methods
which are used in European countries and the United States shall be applied
during interrogation; all medical reports shall be drawn in strict conformity
with the circulars issued by the Ministry of Health; suspects shall have
access to legal counsel as per relevant laws; police detention centres shall
be controlled periodically; all detainees shall be registered; detainees shall
be placed in sufficiently large units conforming to health standards; all law
enforcement officials who ill—treat detainees shall irimediately be subjected
to legal action; all governors and security authorities shall constantly
supervise their subordinate police departments and inform the Ministry of
Interior of the result of their controls so as to ensure strict adherence to
the aforementioned measures.
196. With a view to implementing the European Convention on Human Rights and
preventing torture and ill—treatment, 20 police officers had been sent to
meriber countries of the Council of Europe for training and seminars on human
rights issues had also been organized for security personnel. Human rights
had been introduced as a compulsory course in the curricula of primary and
secondary schools and as an elective for high schools. At the request of the
Prime Minister, the High Advisory Council for Human Rights had prepared a
study on effective and humane interrogation methods and the Ministry of
Interior had initiated studies for the application of the report. During
1995, 291 cases had been registered against pJ lic officials under
articles 243 and 245 of the Turkish Penal Code prohibiting torture and
ill—treatment, Of these cases, 20 had resulted in convictions, 49 in
acquittals and the remaining cases were pending.
197. On 9 October 1996 the Government informed the Special Rapporteur that in
accordance with changes that had been made to article 8 of the A nti—Terror Law
calling for the revision of sentences passed under its former provisions,
269 persons had been released and 1,408 persons had seen their sentences
reduced. On 23 October 1996 the Government informed the Special Rapporteur
that the periods of detention in State Security Courts would be reduced to
fall into line with other democratic countries in Europe. Additional reforms
would also be made to the State Security Court system.
198. By letter dated 11 Nover er 1996 the Special Rapporteur, on behalf of
himself and of the Chairman of the Board of the United Nations Voluntary Fund
for Victims of Torture, expressed concern to the Government over information
E/CN. 4/1997/7
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received on the prosecution of officials of the Human Rights Foundation of
Turkey (HRFT) , a non—governmental organization operating four torture
rehabilitation centres. Mustafa Cinkilic, the Adana representative of HRFT,
was charged in connection with the operation of the Adana rehabilitation
centre without licensing from the Department of Health. Tuf an Kose, the
doctor in charge at the HRFT Adana office, was charged with failing to notify
the judiciary or police magistrate that 167 patients examined by him had
claimed to have been subjected to torture and with failing to make certain
information about those patients available when requested to do so by the
Public Prosecutor. Their trial was scheduled to reconvene on 17 January 1997.
(Similar charges of opening an unlicensed health centre, brought by the
Istanbul Beyo lu Public Prosecution Office against the Istanbul representative
of HRFT, Ukran Akin, reportedly resulted in his acquittal on
1 Nover er 1996.) In addition, notice was reportedly served upon HRFT by the
head of the Department for A nnexed and New Foundations that the organization
was to be investigated for “collaboration” with various non—governmental and
intergovernmental agencies, including the United Nations Voluntary Fund for
Victims of Torture, without having obtained permission from the authorities.
It was alleged that the legal actions constituted elements of a concerted
effort on the part of a nunter of governmental ministries to curtail or halt
altogether the activities of HRFT and that an inter-ministry meeting had been
convened for this purpose. The principle expressed in article 14 of the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment and in Corir ission on Human Rights resolution 1996/33 that national
legal systems should ensure that the victims of acts of torture are afforded
medical rehabilitation appeared to be strained, if not breached, by the
actions of the Government. Many patients might fear that adverse consequences
could result from disclosure of medical records and so might avoid seeking
treatment. In addition, as principles of medical ethics might compel doctors
under circumstances arising in the cases of some HRFT patients to maintain
strict confidentiality, they might be deterred from rendering their services
for fear of prosecution for behaving in accordance with professional ethics.
The Special Rapporteur and Chairman accordingly appealed to the Government to
refrain from taking action against HRFT personnel that could effectively limit
the activities of rehabilitation service providers or restrict the
opportunities for torture victims to receive rehabilitation services and to
take care not to inhibit the flow of scarce financial resources to Turkey
earmarked for torture rehabilitation.
Observations
199. The Special Rapporteur appreciates the Government's responses, but
continues to be concerned at the apparently widespread practice of torture in
Turkey. In this respect, he notes the public statement issued at the end of
1996 by the European Corimittee for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment (CPT) . The Corimittee, after visiting places
of detention on a nuriber of occasions over recent years, most recently in
Septe n ter 1996, asserted that “resort to torture and other forms of severe
ill—treatment remains a common occurrence in police establishments in Turkey.
To attempt to characterize the problem as one of isolated acts of the kind
which can occur in any country — as some are wont to do — is to fly in the
face of the facts”. The Special Rapporteur was particularly struck by the
CPT's observation that “the cases of seven persons (four women and three men)
E/CN.4/1997/7
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medically examined at Sakarya Prison, where they had very recently arrived
after a period of custody in the Anti—Terror Department at Istan bul Police
Headquarters, must rank among the most flagrant examples of torture
encountered by CPT delegations in Turkey”. He shares the CPT's concern that
even the bill that would provide for access to a laywer after four days
permits a delay that is “not acceptable”. 5
200. In the light of the Government's consistent reliance on reports from
officially appointed doctors to the effect that there has been no torture or
ill—treatment (a conclusion not, to the Special Rapporteur's knowledge,
normally within medical competence even in respect of physical torture or
ill—treatment), he endorses the following statement of the CPT: “the forensic
doctor must enjoy formal and de facto independence, have been provided with
specialized training and been allocated a mandate which is sufficiently broad
in scope. If these conditions are not met — as is frequently the case — the
present system can have the perverse effect of rendering it all the more
difficult to cor at torture and ill—treatment” (para. 6) . The Government has
still not agreed to extend an invitation to the Special Rapporteur to visit
the country.
U Qanda
201. The Special Rapporteur made an urgent appeal on behalf of one person.
United Arab Emirates
202. The Special Rapporteur made an urgent appeal on behalf of one person.
United KinQdom of Great Britain and Northern Ireland
203. The Special Rapporteur transmitted five individual cases, to which the
Government provided replies.
United Republic of Tanzania
204. By letter dated 10 June 1996 the Special Rapporteur informed the
Government that he had received reports regarding instances of torture and
other ill—treatment alleged to have occurred in Zanzibar following the general
election in October 1995. Activists from the opposition Civic Unit Front
(CUF) were said to have been particularly targeted by the police, the security
services and mer ers of the youth wing of the ruling party (CCM)
205. The Special Rapporteur transmitted 12 individual cases, to which the
Government provided replies.
Uzbekistan
206. The Special Rapporteur transmitted three individual cases. He also made
an urgent appeal in conjunction with the Special Rapporteur on extrajudicial,
summary or arbitrary executions and the Special Rapporteur on the independence
of judges and lawyers on behalf of four persons.
E/CN. 4/1997/7
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Vene zuel a
207. The Special Rapporteur transmitted 37 newly reported cases of incidents
of torture. The Government provided replies on 20 cases transmitted in
previous years, some of them involving several persons.
Observations
208. The Special Rapporteur visited Venezuela from 7 to 16 June 1996, at the
invitation of the Government. The report of the visit is contained in
addendum 3 to the present report.
Viet Nam
209. The Special Rapporteur made an urgent appeal in conjunction with the
Special Rapporteur on extrajudicial, summary or arbitrary executions on behalf
of three persons, to which the Government replied. He also made an urgent
appeal in conjunction with the Chairman of the Working Group on Arbitrary
Detention on behalf of one person, to which the Government replied.
YuQoslavia
210. By letter dated 6 August 1996 the Special Rapporteur advised the
Government that he had continued to receive information indicating that ethnic
Albanians had been subjected to ill—treatment and torture, including severe
beatings and electric shocks, by police officers in Kosovo. The situation was
said to be particularly grave in the district of timjle since October 1995,
when a new corir ander assumed his position at the timjle police station.
211. The Special Rapporteur transmitted eight individual cases. He also made
two urgent appeals in conjunction with the Chairman of the Working Group on
Arbitrary Detention and the Special Rapporteur on the situation of human
rights in the former Yugoslavia. The Government replied to one of those
appeals on behalf of six persons. He sent another urgent appeal in
conjunction with the Special Rapporteur on the situation of human rights in
the former Yugoslavia on behalf of three persons.
Observations
212. The Special Rapporteur appreciates the reply he received from the
Government. He continues to be concerned at the persistence of allegations of
torture or ill—treatment of persons in custody, especially in Kosovo. He
supports the recorimendation of the Special Rapporteur on the situation of
human rights in the territory of the former Yugoslavia that “provisions
permitting suspects to be held for 72 hours in police custody without judicial
supervision should be brought into line with the narrower limits set in
international standards, notably in the International Covenant on Civil and
Political Rights” (E/CN.4/1997/9, para. 131).
Zaire
213. The Special Rapporteur transmitted 15 newly reported cases and
retransmitted the cases already sent in 1995. In addition, he sent S urgent
E/CN.4/1997/7
page 48
appeals, most in conjunction with the Special Rapporteur on the situation of
human rights in Zaire, involving 13 individuals or groups. He received no
replies from the Government.
Observations
214. In the light of the information he has received, the Special Rapporteur
considers that the conclusion of the Special Rapporteur on the situation of
human rights in Zaire in his 1996 report to the Corimission remains applicable:
wtorture, cruel, inhuman and degrading treatment, and the rape of women
prisoners . .. have not ceased” (E/CN.4/1996/66, para. 121)
Z arcjii a
215. The Special Rapporteur made an urgent appeal on behalf of two persons,
to which the Government provided a reply.
Other corir unications: information transmitted to
the Palestinian Authority
216. The Special Rapporteur made 5 urgent appeals on behalf of 11 persons.
ConcludinQ remarks
217. The Special Rapporteur again reiterates the recorimendations surimarized
in his report to the Corimission at its fifty—first session (E/CN.4/1995/34,
para. 926) and reminds Governments of how some of their responses to his
corir unications could be focused to facilitate his work, as indicated in his
report to the fifty—second session of the Corimission (E/CN.4/1996/35,
paras. 198-201)
Notes
1.Approved by Economic and Social Council resolutions 663 C (XXIV) of
31 July 1957 and 2078 (LXII) of 13 May 1977.
2.General Coriments 7 (16) and 20 (44) . See Official Records of the General
Asseribly. Thirty—seventh Session. Su lement No. 40 (A/37/40) and
Forty—seventh Session. Su lement No. 40 (A/47/40)
3.Council of Europe, press release 707 (96), 6 Decer er 1996.
4. Ibid.
5. Ibid.
E/CN. 4/1997/7
page 49
A nne x
METHODS OF WORK OF THE SPECIAL PAPPORTEUR ON TORTURE
1. The Special Rapporteur's methods of work are based on his mandate as
stipulated originally in Corir ission on Human Rights resolution 1985/33 and as
developed by the Corimission in numerous further resolutions. The parameters
of his work are set forth in the International Bill of Human Rights and other
United Nations instruments containing provisions that guarantee the right not
to be tortured or subjected to cruel, inhuman or degrading treatment or
punishment.
2. The Special Rapporteur carries out the following main types of activity:
(a) Seeking and receiving credible and reliable information from
Governments, the specialized agencies and intergovernmental and
non—governmental organizations;
(b) Making urgent appeals to Governments to clarify the situation of
individuals whose circumstances give grounds to fear that treatment falling
within the Special Rapporteur's mandate might occur or be occurring;
(c) Transmitting to Governments information of the sort mentioned in
(a) above indicating that acts falling within his mandate may have occurred or
that legal or administrative measures are needed to prevent the occurrence of
such acts;
(d) carrying out visits in situ with the consent of the Government
concerned.
3. An urgent appeal is made on the basis of information received by the
Special Rapporteur expressing concern about the fact that a person is at risk
of being subjected to torture. Such concern may be based, inter alia , on
accounts by witnesses of the person's physical condition while in detention,
or on the fact that the person is kept incorir unicado, a situation which may be
conducive to torture. The Special Rapporteur, when making a determination as
to whether there are reasonable grounds to believe that an identifiable risk
of torture exists, takes into account a nur er of factors, any one of which
may be sufficient, though generally more than one will be present. These
factors include: (a) the previous reliability of the source of information;
(b) the internal consistency of the information; (c) the consistency of the
information with information on other cases from the country in question that
has come to the Special Rapporteur's attention; (d) the existence of
authoritative reports of torture practices from national sources, such as
official cor1r issions of inquiry; (e) the findings of other international
bodies, such as those established in the framework of the United Nations human
rights machinery; (f) the existence of national legislation, such as that
permitting prolonged incorir unicado detention, that can have the effect of
facilitating torture; and (g) the threat of extradition or deportation,
directly or indirectly, to a State or territory where one or more of the above
elements are present.
E/CN.4/1997/7
page 50
4. The urgent appeal procedure is not per se accusatory, but essentially
preventive in nature and purpose. The Government concerned is merely
requested to look into the matter and to take steps aimed at protecting the
right to physical and mental integrity of the person concerned, in accordance
with the international human rights standards.
5. In view of the fact that the urgent appeal contains information that is
extremely time—sensitive, the appeal is addressed directly to the foreign
affairs ministry or department of the country concerned.
6. The Special Rapporteur, where appropriate, sends urgent appeals jointly
with other organs of the United Nations human rights machinery.
7. The Special Rapporteur transmits to Governments surimaries of all
credible and reliable information addressed to him alleging individual cases
as well as practices of torture. At the same time he requests the Governments
to look into those allegations and to provide him with relevant information on
them. In addition, the Special Rapporteur urges Governments to take steps to
investigate the allegations; to prosecute and impose appropriate sanctions on
any persons guilty of torture regardless of any rank, office or position they
may hold; to take effective measures to prevent the recurrence of such acts;
and to compensate the victims or their relatives in accordance with the
relevant international standards.
8. The Special Rapporteur analyses responses from Governments and transmits
the contents to the sources of the allegations, as appropriate, for corir ent.
If required, dialogue with the Government is then pursued further.
9. The Special Rapporteur does, where appropriate, acknowledge the
existence of persistent acts of violence, including torture, corir itted by
armed groups when these are brought to his attention. However, in
transmitting allegations of torture he deals exclusively with Governments, as
the authorities bound by the regime for the international legal protection of
human rights.
10. The Special Rapporteur maintains contact and, where appropriate, engages
in consultation with related bodies and mechanisms of the United Nations human
rights machinery, such as the Corimittee against Torture and other organs of
the Corimission on Human Rights, the Board of Trustees of the United Nations
Voluntary Fund for Victims of Torture and the Corimission on Crime Prevention
and Criminal Justice.
11. The Special Rapporteur does not, as a rule, seek to visit a country in
respect of which the United Nations has established a country—specific
mechanism such as a special rapporteur on the country, unless a joint visit
seems to both to be indicated. As regards countries where the mandates of
other thematic mechanisms may also be affected, he seeks consultation with
them with a view to exploring with the Government in question, either jointly
or in parallel, the possibility of a joint visit. Similarly, where the
Corir ittee against Torture is considering the situation in a country under
article 20 of the Convention against Torture and Other Cruel, Inhuman or
E/CN. 4/1997/7
page 51
Degrading Treatment or Punishment, especially if that consideration involves a
visit or possible visit to the country in question, the Special Rapporteur
does not seek a visit.
12. The Special Rapporteur carries out visits to countries on invitation,
but also takes the initiative of approaching Governments with a view to
carrying out visits to countries on which he has received information
indicating the existence of a significant incidence of torture. Such visits
allow the Special Rapporteur to gain more direct knowledge of cases and
situations falling within his mandate, and are intended to enhance the
dialogue between the Special Rapporteur and the authorities most directly
concerned, as well as with the alleged victims, their families and their
representatives and concerned non—governmental organizations. The visits also
allow the Special Rapporteur to address detailed recorimendations to
Governments.
13. With regard to countries in which visits have been carried out, the
Special Rapporteur periodically reminds Governments concerned of the
observations and recorimendations formulated in the respective reports,
requesting information on the consideration given to them and the steps taken
for their implementation, or the constraints which might have prevented their
implementation.
14. The Special Rapporteur reports annually to the Corir ission on Human
Rights on the activities which he has undertaken since the Corir ission's
previous session. He may also make observations on specific situations, as
well as conclusions and recorimendations, where appropriate.
