Aadel Collection
Report of the Special Rapporteur, Mr. Nigel S. Rodley, submitted pursuant to Commission on Human Rights resolution 1997/38
UNITED
NATIONS
E
Distr.
Economic and Social GENERAL
Council
E/CN.4/1998/38
24 December 1997
Original: ENGLISH
COMMISSION ON HUMAN RIGHTS
Fifty-fourth session
Item 8 (a) of the provisional agenda
QUESTION OF THE HUMAN RIGHTS OF ALL PERSONS SUBJECTED TO
ANY FORM OF DETENTION OR IMPRISONMENT, IN PARTICULAR:
TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT
OR PUNISHMENT
Report of the Special Ra orteur, Mr. Nigel S. Rodley, submitted
pursuant to Commission on Human Rights resolution 1997/38
CONTENTS
Paragraphs
Page
Introduction
1- 2 4
I. MANDATE AND METHODS OF WORK . . . 3
II. ACTIVITIES OF THE SPECIAL RAPPORTEUR . .
III. INFORMATION REVIEWED BY THE SPECIAL RAPPORTEUR
WITH RESPECT TO VARIOUS COUNTRIES . .
Afghanistan
Albania
Algeria
Argentina
Armenia
Austria
Azerbaij an
Bahrain
Bhutan
Bolivia
Brazil
Bulgaria
Burundi
Cameroon
4- 6 5
7 - 219
5
9- 10 6
11 6
12- 18 6
19 7
20-21 7
22
23
8
8
24-25 8
26 8
27-28 8
29- 33 8
34 - 36 9
37 10
38 - 39 10
4
GE.97-l4596 (E)
E/CN. 4/1998/38
page 2
CONTENTS
Paragraphs Page
Chad 40 - 45 10
Chile 46 - 48 11
China 49 - 50 12
Colombia 51 - 82 12
Cuba 83 - 84 18
Cyprus 85 18
Democratic Republic of the Congo 86 18
Djibouti 87 18
Ecuador 88 19
Egypt 89 - 93 19
Equatorial Guinea 94 - 95 20
Ethiopia 96 - 97 20
Georgia 98 - 101 21
Germany 102 - 104 21
Greece 105 22
Guatemala 106 22
Haiti 107 - 108 22
Honduras 109 22
Hungary 110 23
India 111 - 113 23
Indonesia 114 - 117 23
Iran (Islamic Republic of) 118 - 119 24
Iraq 120 24
Israel 121 - 123 24
Kenya 124 - 128 25
Kuwait 129 26
Malaysia 130 26
Maldives 131 27
Mauritania 132 27
Mexico 133 - 134 27
Myanmar 135 - 141 27
Namibia 142 29
Nepal 143 - 146 29
Niger 147 29
Nigeria 148 29
Pakistan 149 - 153 30
Peru 154 - 157 31
Republic of Korea 158 - 160 32
Romania 161 - 162 33
Russian Federation 163 - 170 33
Rwanda 171 35
Senegal 172 - 173 35
Spain 174 - 175 35
Sri Lanka 176 36
Sudan 177 - 180 36
Swaziland 181 37
Sweden 182 37
Switzerland 183 - 184 37
Syrian Arab Republic
Tunisia
Turkey
Ukraine
United Kingdom of Great Britain and
Northern Ireland .
United Republic of Tanzania
United States of America
Venezuela
Yemen
Yugoslavia
Zambia
Other communications: information transmitted to the
Palestinian Authority
CONTENTS ( continued )
E/CN .4/1998/38
page 3
Paragraphs Page
185
186
187 - 193
194 - 195
37
37
38
39
39
39
40
41
41
43
44
44
198
204
207
214
196
197
- 203
- 206
- 213
- 217
218
219
IV. CONCLUSIONS AND RECOMMENDATIONS
220 - 234 44
E/CN. 4/1998/38
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 Commission resolution 1995/37 B. In conformity with this resolution
and with resolution 1997/38, the Special Rapporteur hereby presents his fifth
report to the Commission. Chapter I deals with a number of aspects pertaining
to the mandate and methods of work. Chapter II summarizes his activities
during 1997. 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 December 1996 to 5 December 1997. Chapter IV contains
conclusions and recommendations.
2. In addition to the above-mentioned resolutions, several other
resolutions adopted or reaffirmed by the Commission on Human Rights at its
fifty-third 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: decision 1997/106 reaffirming resolution 1996/32, “Human rights
in the administration of justice, particularly with respect to children and
juveniles in detention”; resolution 1997/16, “Rights of persons belonging to
national or ethnic, religious and linguistic minorities”; resolution 1997/27,
“Right to freedom of opinion and expression”; resolution 1997/28,
“Hostage-taking”; resolution 1997/37, “Human rights and thematic procedures”;
resolution 1997/39, “Internally displaced persons”; resolution 1997/42, “Human
rights and terrorism”; resolution 1997/43, “Integrating the human rights of
women throughout the United Nations system”; resolution 1997/44, “The
elimination of violence against women”; resolution 1997/46, “Advisory
services, technical cooperation and the Voluntary Fund for Technical
Cooperation in the Field of Human Rights”; resolution 1997/56, “Cooperation
with representatives of the United Nations human rights bodies”;
resolution 1997/69, “Comprehensive implementation of and follow-up to the
Vienna Declaration and Programme of Action”; resolution 1997/75, “Human rights
and mass exoduses”; resolution 1997/78, “Rights of the Child”.
I. MANDATE AND METHODS OF WORK
3. No mandate-related issues have arisen during the year under review, nor
have there been any new developments in the methods of work of the Special
Rapporteur. Nevertheless, the Special Rapporteur wishes to assure the
Commission on Human Rights that he has continued its practice of cooperating
with the holders of other Commission mandates to avoid duplication of activity
in respect of country-specific initiatives. Thus, he has sent urgent appeals
or transmitted information alleging violations within his mandate to
Governments, or sought joint missions to Member States, in conjunction with
the following mechanisms: the Working Groups on Enforced or Involuntary
Disappearances and on Arbitrary Detention and the Special Rapporteurs on
extrajudicial, summary or arbitrary executions; independence of judges and
lawyers; freedom of opinion and expression; elimination of violence against
women; Afghanistan; the Islamic Republic of Iran; Myanmar; the Sudan; the
Democratic Republic of the Congo; Rwanda; and Burundi.
E/CN.4/1998/38
page S
II. ACTIVITIES OF THE SPECIAL RAPPORTEUR
4. During the period under review the Special Rapporteur undertook a
mission to Mexico (7-16 August 1997) . The report of the visit may be found in
addendum 2 to the present report. The Government of Turkey has invited the
Special Rapporteur to visit the country in the last quarter of 1998, an
initiative for which he is most grateful. Requests made this year for
invitations to visit Algeria and Egypt in the coming year received a positive
reaction in a first contact with the Permanent Missions of the two States.
The Permanent Mission of Cameroon contacted the Special Rapporteur in respect
of his outstanding request for an invitation to visit the country leading him
to hope that progress could be made in this respect. The outstanding requests
for invitations to visit China, India, Indonesia and Kenya remain without
positive response.
S. The Special Rapporteur participated in the fourth meeting of special
rapporteurs/representatives, experts and chairmen of working groups of the
special procedures of the Commission on Human Rights and of the Advisory
Services Programme which took place in Geneva from 20 to 23 May 1997. From
S to 7 May he attended part of the sixth session of the Commission on Crime
Prevention and Criminal Justice which took place in Vienna from 28 April
to 8 May 1997.
6. He also attended a number of pertinent NGO meetings including an
expert group meeting convened by REDRESS on the role of victims of crimes
within the jurisdiction of the proposed International Criminal Court
(Geneva, 15-16 March 1997) ; an Amnesty International meeting on universal
jurisdiction (Netherlands, 9-11 May 1997) ; and an international conference on
impunity organized by the International Institute for High Studies in the
Criminal Sciences (Siracusa, Italy, 17-20 September 1997) . The subject matter
of these meetings contributed substantially to the recommendations that
conclude the present report. He also participated in a panel of the annual
meeting of the American Society of International Law (Washington D.C.,
10-12 April 1997) examining the work of United Nations human rights protection
machinery.
III. INFORMATION REVIEWED BY THE SPECIAL RAPPORTEUR
WITH RESPECT TO VARIOUS COUNTRIES
7. During the period under review, the Special Rapporteur sent 48 letters
to 45 Governments on behalf of 380 individuals and 24 groups involving
about 655 persons. About 74 were known to be women and about 56 were known
to be minors. The Special Rapporteur also transmitted 119 urgent appeals
to 45 countries on behalf of some 563 individuals (at least 19 known to be
women and 9 known to be minors) , as well as 22 groups of persons (one
involving about 780 children) 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, 28 countries provided the Special
Rapporteur with replies on some 34S cases submitted during the current year,
whereas 19 did so with respect to some 290 cases submitted in previous years.
E/CN. 4/1998/38
page 6
8. This chapter contains, on a country-by-country basis, summaries of the
general allegations transmitted by letter to Governments and the latter's
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
recommendations made after previous years' visits to countries are also
included. Finally, observations by the Special Rapporteur have also been
included where applicable. Information about individual cases transmitted and
replies received are contained in addendum 1 to this report.
Afghanistan
9. The Special Rapporteur sent two urgent appeals, one in conjunction with
the Special Rapporteur on the situation of human rights in Afghanistan
concerning the application of amputation as a form of punishment, and the
other on behalf of one individual in conjunction with the Special Rapporteurs
on the situation of human rights in Afghanistan and on extrajudicial, summary
or arbitrary executions.
Observations
10. In the light of the information contained in the interim report of the
Special Rapporteur on the situation of human rights in Afghanistan (A/42/493)
and in the addendum to the present report (E/CN.4/1998/38/Add.1, paras. 1-2),
the Special Rapporteur is concerned at the incidence of torture or other
cruel, inhuman or degrading treatment or punishment, in particular extreme
forms of corporal punishment often specifically inflicted on women determined
to have been involved in offences of a moral nature.
Albania
11. The Special Rapporteur transmitted to the Government one urgent appeal
on behalf of persons arrested during demonstrations and received one reply
from the Government.
Algeria
12. By letter of 17 November 1997, the Special Rapporteur informed the
Government that he had received reports that torture and ill-treatment
occurred frequently during periods of incommunicado detention in police and
gendarmerie stations, military security centres and secret detention centres.
Incommunicado or garde a vue detention could reportedly be extended
to 12 days, since the issuance of decree No. 92-03 of 30 September 1992.
13. The main purpose of torture and ill-treatment was said to be the
extraction of information and the signing of confessions in the form of
written statements ( procês verbaux ) during interrogation, but it was also said
to have been used as a form of punishment. The information received suggested
that persons suspected of having links with armed opposition groups were
particularly vulnerable to torture.
14. Torture methods most commonly used by the security forces were said to
include: “chiffon”, whereby a detainee is tied to a bench and a cloth is
E/CN.4/1998/38
page 7
stuffed in his mouth after which large quantities of dirty water and chemicals
are poured into his mouth; “ chalumeau” , whereby a torch is used for inflicting
burns on the body; electric shocks to sensitive parts of the body; tying a
rope around the penis and/or testicles or placing the genitals between
drawers; beatings; burnings by cigarettes; insertion of objects or glue into
the anus; and suspension. Information had also been received alleging that
persons had been subjected to rape, pumping of salt water into the stomach -
sometimes reportedly leading to death, boring of holes in limbs or breaking of
them. Detainees were further said often to be blindfolded during prison
transfers and sometimes also during interrogation and the initial period of
detention.
15. Independent medical supervision during incommunicado detention, but also
thereafter, had allegedly frequently been denied. If a medical examination
took place, it was reportedly often carried out after a delay and by a
Government-appointed doctor. Some detainees had reportedly died in detention
as a result of torture.
16. Since 1992, the authorities had reportedly not carried out any official
judicial investigations into allegations of torture and ill-treatment and
preventive measures had allegedly not been taken. Confessions obtained under
duress were said to have been used as evidence in court. Furthermore, no
independent human rights or humanitarian organization was reportedly able to
carry out private interviews with detainees in prison.
17. The Special Rapporteur also transmitted four individual cases. In
addition, he sent an urgent appeal on behalf of one person, and received a
reply from the Government. In his letter of 17 November 1997, the Special
Rapporteur also requested the Government's agreement on the possibility of a
visit to the country, in order to enable him to better fulfil his mandate.
Observations
18. In the light of the information before the Special Rapporteur and of
preliminary contacts with the Permanent Mission, he has reason to hope that
the Government will see fit to extend to him an invitation to visit the
country in the coming year.
Argentina
19. The Special Rapporteur transmitted to the Government information
received on the treatment to which a group of prisoners in the Persons on
Charge Unit (Unidad de Encausados) of the city of Côrdoba had allegedly been
subjected.
Armenia
20. The Special Rapporteur transmitted 6 newly reported cases, some of them
collective, concerning 11 individuals and a number of unnamed persons. He
also retransmitted the cases sent by the Special Rapporteur in 1996 to which
no reply had been received.
E/CN. 4/1998/38
page 8
Observations
21. The Special Rapporteur considers the observations he made in his report
last year (E/CN.4/1997/7, para. 23) remain pertinent.
Austria
22. The Government provided additional information concerning two cases
which were transmitted and first replied to in 1996.
Azerbail an
23. The Special Rapporteur transmitted to the Government two newly reported
cases: one individual case and one collective case on behalf of two
individuals and a group of unnamed persons. He also retransmitted one
individual case already sent in 1996 but to which no reply had been received.
Bahrain
24. The Special Rapporteur transmitted one individual case and three urgent
appeals. The Government replied to the urgent appeals.
Observations
25. The Special Rapporteur appreciates the Government's responses to his
urgent appeals. He would welcome the Government's reaction to the
observations he formulated in his report of last year (E/CN.4/1997/7,
para. 29)
Bhutan
26. The Special Rapporteur transmitted three urgent appeals, all of which
the Government replied to.
Bolivia
27. The Special Rapporteur sent an urgent appeal on behalf of one person,
and the Government replied.
Observations
28. The Special Rapporteur notes the recommendation of the Human Rights
Committee that the Government should institute investigations into human
rights violations “to bring to justice the perpetrators and to provide proper
compensation to the victims, particularly with respect to continuing
occurrences of torture and ill-treatment by the police and security forces”
(A/52/40, para. 218)
Brazil
29. On 26 May 1997 the Special Rapporteur advised the Government that he had
received information that the forensic medicine services were subordinate to
the security forces, which compromised the independence they ought to enjoy.
E/CN.4/1998/38
page 9
Moreover, under Brazilian law only a medical examination authorized by a
police authority was valid in court. This meant that victims of possible acts
of torture or ill-treatment would be reluctant to seek such authorization for
fear of reprisals, thus making it difficult to obtain evidence.
30. The Brazilian Forensic Medicine Society and the Brazilian Society of
Forensic Criminology Experts had apparently been seeking financial and
administrative autonomy from the police since 1989 and had proposed
legislative initiatives to this effect. The Government, however, was said not
to have attached priority to this matter. To date, only in the State of AmapI
had forensic services ceased to be subordinate to the police authorities and
they now reported directly to a secretariat linked to the Governor's Office.
31. It was also reported that doctors had been asked to indicate the
physical cause of death in autopsy forms but had not been instructed to
include comments on the means which had provoked the death, nor had they been
instructed about submitting the kind of information that might be relevant to
a legal investigation. Therefore, important data were often lost.
32. The Special Rapporteur also received information that the police, both
civil and military, and also the federal police, frequently resorted to
torture in much of the country. Contributory factors were the lack of
training and the impunity usually enjoyed by those responsible. Moreover, the
legislature still had not adopted measures to criminalize torture. Although
the lower house had approved the appropriate bill on 2 July 1996 it was still
pending in the Senate.
33. The Special Rapporteur also transmitted to the Government information on
three individual cases and one urgent appeal together with the Special
Rapporteur on extrajudicial, summary or arbitrary executions.
Bulgaria
34. By letter of 11 July, the Special Rapporteur advised the Government that
he had received information on what was alleged to be a substantial incidence
of torture or other ill-treatment inflicted by members of the police against
street children, especially those of Roma ethnicity. The ill-treatment, which
was said to take place both at the time of arrest and during detention at
police stations, was allegedly carried out to intimidate or to extract a
“confession”. The children so detained were reportedly sometimes picked up on
suspicion of such crimes as theft, but might also be arrested as part of
generalized “street sweeps”. The abuse reported included beatings with fists,
boots, electric shock batons, clubs, chains, rubber hosing, boxing gloves or a
metal rod with a ball attached to its end ( beech ) and beatings on the soles of
the feet, sometimes with electric batons ( falaka ) . Detained children who were
held at police stations were said frequently to be held without beds, blankets
and sometimes without food or use of toilets. The parents of such detainees
were reportedly rarely informed of their detention. Children were also
reported to be sometimes held together in lock-ups with adult detainees.
35. The Special Rapporteur also informed the Government of newly received
allegations concerning seven persons, two of them minors. In connection with
a number of cases transmitted in 1996 on which replies had been received, the
E/CN. 4/1998/38
page 10
Special Rapporteur sent to the Government the observations made by the source
on the replies. In addition to that, the Special Rapporteur retransmitted the
cases which had not been replied to.
Observations
36. The Special Rapporteur's observations of last year (E/CN.4/1997/7,
para. 37) appear to remain pertinent.
Burundi
37. The Special Rapporteur transmitted to the Government four urgent
appeals, including one in conjunction with the Special Rapporteur on the
situation of human rights in Burundi.
Cameroon
38. The Special Rapporteur transmitted to the Government information on
three individual cases and one case involving three persons and received a
reply in each case. He also sent two urgent appeals, both collective.
Observations
39. The Special Rapporteur notes his outstanding request for an invitation
to visit the country. Contacts with the Permanent Mission lead him to hope
that progress may be made in this respect.
Chad
40. In a letter dated 26 May 1997, the Special Rapporteur informed the
Government that he had received information that the torture of persons
arrested for political reasons was a widespread practice throughout Chadian
territory. One of the commonly used methods of torture reported is known as
“ arbatachar ” which involves tying the victim's arms and legs behind his back,
thus causing extreme pain, open wounds and, in some cases, gangrene. Another
technique is to use two metal rulers or two pieces of iron held together with
two elastic bands which the torturers fit onto the head of the victim, who is
tied in the “ arbatachar ” position against a tree or a pole; they then beat in
time on the metal rulers or pieces of iron several times for at least one hour
using another piece of iron. Cases of prisoners stuffed into burlap sacks and
thrown into the Logone river had also been reported.
41. Violence against women, including the rape of young girls, also seemed
to be very widespread. The persons responsible seemed to be not only the
security forces, but also armed opposition groups. Because of the social
stigma attached to rape, the victims hardly dare to seek medical attention,
much less speak out or file a complaint.
42. The reports also stated that persons suspected of belonging to the armed
opposition were singled out for ill-treatment. In the majority of cases, they
were allegedly tortured at the time of arrest or inside gendarmerie premises
by soldiers and gendarmes trying to obtain information. Some prisoners were
also said to be tortured in National Security Agency premises.
E/CN.4/1998/38
page 11
43. According to the information received, it was unusual for complaints to
be filed because the victims were afraid of reprisals or considered that the
persons who were guilty would never be brought to justice. In addition, the
authorities allegedly did not take account of requests by judges in connection
with investigations of human rights violations. For example, when orders were
given by the public prosecutor for the interrogation of soldiers responsible
for human rights violations, the gendarmes would refuse on the grounds that
they could not interrogate their superiors. The authorities also made sure
that jails and places of detention were beyond the prosecutors' control and
set up obstacles to the prosecutors' work in this regard.
44. The Special Rapporteur has transmitted information to the Government
on 13 cases, some of them collective, relating to 19 persons, as well as to a
number of unidentified persons. He also transmitted an urgent appeal on
behalf of eight persons.
Observations
45. The Special Rapporteur regrets the absence of a response from the
Government, in the light of information indicating the probability that there
is extensive resort to torture by the forces charged with keeping public
order.
Chile
46. In a letter dated 22 September 1997 the Special Rapporteur, as a
follow-up to the recommendations he had addressed to the Government after his
visit to the country in 1995, requested the Government to provide information
on the following matters:
(a) The follow-up given to the report by the Constitutional,
Legislative and Judicial Committee of the Chamber of Deputies, which proposed
eliminating the “arrest on suspicion” provision from the current Code of
Criminal Procedure;
(b) The follow-up to the bill, shown to the Special Rapporteur during
the course of his visit, reforming the Code of Criminal Procedure and the
Penal Code with regard to detention and introducing rules to strengthen the
protection of civic rights;
(c) The situation concerning the draft Code of Criminal Procedure and
of the Organization Act relating to the Prosecution Service;
(d) The follow-up to the bill submitted by the Government to the
Chamber of Deputies in 1996 in order specifically to characterize torture as
an offence;
(e) Whether or not in the years 1996 to 1997 officers of the forces of
law and order had been punished for offences relating to violation of the
right to physical integrity of detained persons, and if so, details of these
cases.
E/CN. 4/1998/38
page 12
47. In the same letter the Special Rapporteur transmitted to the Government
information on 12 alleged cases of torture. In addition, the Special
Rapporteur sent an urgent appeal on behalf of four persons.
Observations
48. In the light of information suggesting that torture and ill-treatment
continue to be resorted to by the police, it is a matter of concern that the
Government has not been in a position to elaborate on developments, subsequent
to its response of 10 September 1996 (see E/CN.4/1997/7, paras. 45-53) by way
of follow-up to the recommendations he made in the report of his 1995 visit to
the country (E/CN.4/1996/35/Add.2)
China
49. The Special Rapporteur transmitted 7 newly reported cases, some of them
collective, concerning 11 individuals and a number of unnamed persons. He
also retransmitted the cases sent by the Special Rapporteur in 1996, and a
number of allegations transmitted in 1995 on which no reply had been received.
The Special Rapporteur further made three urgent appeals on behalf of seven
persons. The Government replied to two of the urgent appeals.
Observations
50. The Special Rapporteur appreciates the Government's replies in respect
of the first two urgent appeals. He is also relieved at the later (November)
release of Wei Jingsheng. He notes the absence of response in respect of
other cases transmitted to the Government. In the light of continuing
worrying allegations of torture and ill-treatment, particularly in Tibet, he
again stresses his outstanding request for an invitation to visit the country.
Colombia
51. The Government sent information with regard to a case transmitted by the
Special Rapporteur in 1996.
Follow-up to the recommendations made by the Special Rapporteur on torture and
the Special Rapporteur on extrajudicial, summary or arbitrary executions
subsequent to their visit to Colombia in 1994
52. On 29 October 1996 the Special Rapporteurs reminded the Colombian
Government of recommendations made after their visit to the country in
October 1994 and requested information on measures taken to implement those
recommendations, particularly in connection with certain aspects of the
recommendations detailed in a questionnaire. On 8 January 1997 the Government
replied to this request. During 1997 non-governmental sources provided the
Rapporteurs with information relating to subjects covered by the
recommendations and to the Government's comments.
53. The recommendations (see E/CN.4/1995/111) , a summary of the Government's
reply and a summary of the information received from non-governmental sources
are given below. They were transmitted to the Government on 31 October 1997.
E/CN.4/1998/38
page 13
54. “The Special Rapporteurs call on the Government to fulfil its obligation
under international law to conduct exhaustive and impartial investigations
into all allegations of extrajudicial, summary or arbitrary executions and
torture, to identify, prosecute and punish those responsible, grant adequate
compensation to the victims or their families and take all appropriate
measures to prevent the recurrence of such acts.”
55. The Government indicated with regard to the obligation to compensate
victims that Act No. 288 of 1996 established methods for compensating victims
of violations by virtue of the provisions adopted by certain international
bodies, specifically the Inter-American Commission on Human Rights and the
Human Rights Committee. The Act established an obligational content
specifically for the Government.
56. Non-governmental sources pointed out that, although Act No. 288 of 1996
marked a step forward in making domestic arrangements consistent with
international instruments for the protection of human rights, it did not
encompass the broader view of reparation for violations of human rights
developed by international doctrine and case law and was confined solely to
financial compensation, without any mechanisms which, for example, envisaged
social redress, clearing of the names of the victims and fulfilment of the
State's obligation to guarantee the rights to truth and justice. Similarly,
Act No. 288 of 1996 limited the State's commitment to fulfilling only the
Recommendations on Compensation made by the Inter-American Commission on Human
Rights and by the United Nations Human Rights Committee and excluded any
equally binding recommendations from other intergovernmental bodies for the
protection of human rights, such as the International Labour Organization or
the Committee against Torture.
57. As regards the civil justice system the Rapporteurs recommended,
inter alia , the following: “As long as the Regional Justice System exists,
the crimes falling under this jurisdiction should be clearly defined .
defendants before regional courts must enjoy full respect for their right to a
fair trial. The severe restrictions currently in place, including those
affecting the right to habeas corpus, .. . should be eliminated.”
58. With reference to the Regional Justice System the Government said that
the Administration of Justice Act specifically mentions the period of
operation of the Act, which should cease to apply no later than 30 June 1999.
This Act originally contained provisions to limit the anonymity of witnesses
and of the public prosecutor. Now the Constitutional Court had declared that
it was impossible to eliminate these provisions on procedural grounds.
Nevertheless, from all the criticisms, recommendations and suggestions made,
it can be inferred that the tendency is to reduce the scope of the Regional
Justice System, the principal factors for applying it being the danger posed
by the accused and the seriousness of the offence. More and more restrictions
have been placed on the anonymity of judges and witnesses.
59. Non-governmental sources indicated that, further to the decision by the
Constitutional Court, the previous rules were still in force. This continued
to make it easy for members of the police force to act as secret witnesses and
accuse, in court, those whom they considered their enemies, who were usually
nothing more than social activists.
E/CN. 4/1998/38
page 14
60. The Rapporteurs recommended that “provision should be made for effective
protection of persons providing testimony in proceedings involving human
rights violations”.
61. The Government pointed out that the Programme for the Protection of
Prosecution Witnesses operated on a limited basis, as the requirements were
rather strict and few people were willing to submit to them. Resources
continued to be insufficient for the needs. The Government had made progress
in implementing the Special Programme for the protection of officials and
activists of political, trade union, social and human rights organizations and
witnesses. This programme was run by the Special Human Rights Administrative
Unit of the Ministry of the Interior.
62. Non-governmental sources pointed out that the Programme for the
Protection of Prosecution Witnesses in cases of human rights violations had
not produced particularly good results. On the few occasions it had been used
the conditions were very strict, the greatest difficulty being to ensure
complete separation of the protected person from his or her family. Moreover,
witnesses lacked confidence in the conditions of protection, and
understandable that victims of human rights violations were afraid of any
State official. The rigidity of the Programme conflicted with the lack of
confidence of potential protectees, to the detriment of their safety. The
main problem with this type of programme was that it was designed for
criminals who turned State's witness, rather than for victims of human rights
violations. Victims were exposed to the possibility of being placed on a
charge, since the function of the Prosecutor's Office was to investigate and
accuse, so it was natural for victims not to feel confident about the body
required to protect them. These programmes had very little coverage and their
focus was debatable; there was a tendency to act on threats against the safety
of individuals, but in the overwhelming majority of cases investigation into
the causes of and those responsible for the threats was left aside.
63. With regard to the special programme for the protection of officials and
activists of political, trade union and social organizations, non-governmental
sources pointed out that the programme had been presented to non-governmental
human rights organizations by the Government in March 1997. Since that date
the safety conditions for human rights institutions and their members had been
seriously deteriorating, with many cases of assassinations, disappearances,
court proceedings in which human rights activities were criminalized, threats,
exile and forced displacement. These acts contrasted with governmental policy
since the middle of this year, as exemplified by Presidential Directive
No. 011 of 16 July 1997 and the dialogue begun between human rights
organizations and the Government through the Ministry of the Interior, the
Ministry of Foreign Affairs and the Ministry of Defence, principally on the
situation of human rights defenders.
64. Non-governmental sources also pointed out that Directive No. 011
recognized the legitimacy of the work of non-governmental human rights
organizations, their contribution to democracy and the rule of law, and to
preventing further violations, overcoming impunity and ensuring reparations
for the victims. It ordered public servants to refrain from making insulting
or injurious statements against members of these organizations and to give
priority to petitions by human rights defenders. The non-governmental
E/CN.4/1998/38
page 15
organizations acknowledged the importance of this type of measure.
Nonetheless, in the dialogue begun with the Government they had declared that
these measures should be more far-reaching and more effective. Among the
measures suggested were confronting and eradicating illegal paramilitary
groups, dismissing those members of the public forces and other State
organizations involved in serious human rights violations, and implementing
strategies for prosecuting and punishing those responsible for threats and
attacks against human rights defenders.
65. The Rapporteurs recommended, with regard to military justice, that a
reform of the Code should include the following elements: (a) a clear
distinction between those carrying out operational activities and members of
the military judiciary, who should not form part of the normal chain of
command; (b) reconstitution of the military tribunals with a corps of legally
trained judges; (c) ensuring that investigation and prosecution officials were
independent of the normal military hierarchy; (d) elimination of the principle
of obedience to superior orders in connection with executions, torture and
enforced disappearances; (e) involvement of the claimant for criminal
indemnification ( parte civil ) ; and (f) explicitly excluding from military
jurisdiction the crimes of execution, torture and enforced disappearance.
Furthermore, the body deciding on conflicts of jurisdiction between the civil
and military justice systems should be composed of independent judges.
66. The Government referred to its decision to present to Congress the
reform of the Military Criminal Justice System beginning in March 1997. The
Government had an official position with regard to the two most relevant
points at issue: whether or not to limit the concept of service-related
crimes, and whether or not to restrict the concept that obedience to superior
orders conferred exemption from responsibility. In connection with the first
matter, the Government had opted not to include definitions or regulatory
details and to leave it to the discretion of the court to determine whether or
not the acts were connected with active service. As for obedience to superior
orders, this could only be invoked when the act was the result of a legitimate
order and did not infringe fundamental rights.
67. Other important advances had also been achieved such as a clear
distinction drawn between those who carried out operational activities and
members of the military judiciary, who should not form part of the normal
chain of command; the technical training of investigation and trial personnel;
the introduction of the indictment system; the involvement of the claimant for
indemnification ( parte civil ) in legal proceedings, and the introduction of a
chapter in which the most relevant infringements of international humanitarian
law were characterized as offences.
68. Non-governmental sources pointed out that the draft Military Criminal
Code submitted by the Government reproduced the content of article 221 of the
Constitution and, in connection with serious violations of human rights,
excluded application in the military courts. As to obedience to superior
orders, it established that an order should be carried out with the due legal
formalities and by a competent authority. Nevertheless, it was not explicit
about the duty not to carry out express orders which involved violations of
human rights. Action by the claimant for indemnification ( parte civil ) was
E/CN. 4/1998/38
page 16
extremely limited within legal proceedings, for under article 301 of the draft
that party could not oppose rulings and decisions unless they related to
claims for compensation.
69. The same sources pointed out that the conditions in which the draft was
presented had been substantially modified by the decision of the
Constitutional Court on 5 August 1997, which had ruled on a claim of
unconstitutionality concerning various articles of the Military Criminal Code.
The decision fixed three rules for the application of military criminal law.
The first was that such application was restrictive, which meant that it could
apply only in crimes committed by members of the public security forces on
active service and in connection with their duties. The act had to be part of
the lawful activities of the police service or armed forces; therefore, if the
intention of the agent was criminal from the outset the case fell to the
ordinary courts. The second rule was that certain crimes did not and could
not constitute service-related acts and were not covered by military law, for
example, crimes against humanity. In those circumstances the case should be
assigned to the ordinary courts in view of the total incompatibility between
the crime and the tasks of the public security forces under the Constitution.
Thirdly, the evidence presented in legal proceedings should fully demonstrate
the active service relationship. This meant that, in situations in which
there was doubt about the jurisdiction competent to rule on a particular case,
the decision should be in favour of the ordinary courts, since it had not been
possible to fully demonstrate that the case constituted an exception.
70. The rules fixed by the Constitutional Court were binding on the
country's other jurisdictional authorities. Non-governmental sources
nonetheless showed concern about their application in this instance. This was
due to the fact that, since the ruling, the Government had not made the
necessary arrangements for referral to the Attorney-General's Office or to the
ordinary courts of cases currently under the military criminal justice system
that did not fulfil the conditions for a hearing in the military courts, in
conformity with the Constitutional Court's ruling.
71. The Special Rapporteurs recommended the establishment of a mechanism
which could contribute to providing justice for past offences.
72. The Government pointed out that it had actively participated in the
friendly settlements being reached within the framework of the Inter-American
Commission, also mentioning some of the headway made in the Trujillo, Uvos,
Caloto and Villatina cases.
73. Non-governmental sources recognized the importance of the investigative
commissions mechanism. They noted, however, that progress was minimal in
clearing up cases, punishing the guilty and securing social redress for the
victims of violence. None of the judicial investigations had been completed.
74. The Rapporteurs recommended taking effective priority measures to disarm
and dismantle paramilitary groups.
75. The Government indicated that the activity of private vigilante groups
had been rejected by the highest governmental authorities. The
Attorney-General's Office had described the fight against impunity for acts
E/CN.4/1998/38
page 17
committed by these groups as one of its priorities. The Human Rights Unit was
currently engaged in 29 investigations in that connection and had issued
arrest warrants for members of those groups.
76. Non-governmental sources said that, since the beginning of 1997, the
actions of paramilitary groups had spread throughout the national territory.
In carrying out their actions the groups had committed serious violations
consisting of executions, forced disappearances and torture of a dreadfully
cruel nature on all kinds of victims. They had also caused the displacement
of entire populations. In addition, as was typical since they had emerged,
they had carried out their actions in highly militarized zones and no clashes
had occurred with public security forces. In some cases joint actions with
the army had even been reported.
77. These same sources note that the Government's attitude towards these
groups was permissive, inasmuch as they had not adopted policies to combat
them. Moreover, a tendency was observed to actually legitimize them by
creating and encouraging the so-called “ Convivir ” (coexistence) groups. These
were organizations of private individuals called on to provide special
vigilante and private security services, with official authorization to use
weapons meant for the exclusive use of the public security forces. Although
the law was not clear in determining the activities of these organizations,
they were officially pictured as engaged in intelligence work in armed
conflict zones, helping the army to combat the guerrillas. This meant that
tasks which were rightly the work of the military were being delegated to
private individuals, which was contrary to the provisions of the Constitution,
according to which these tasks could only be carried out by the military and
the police forces. An application of unconstitutionality against the decree
creating these groups was currently under examination by the Constitutional
Court.
78. During 1997 the activity of these groups has been stepped up in the
municipalities of Yondô, Dadeiba, Remedios and Santa Rosa de Osos, in the
Department of Antioquia; Carmen de Bolivar, Rio Viejo and Tiquisio Nuevo, in
the Department of Bolivar; Milmn, in the Department of CaquetI; La Jagua de
Ibirico, El Copey and La Paz, in the Department of César; Riosucio, in the
Department of Chocô; Abrego, in the Department of Norte de Santander, and
MapiripIn, in the Department of Meta.
79. The Special Rapporteurs recommended the adoption of measures to protect
those at risk of “social cleansing” killings, in particular street children.
80. The Government pointed out that the President's Social Solidarity
Network was conducting a special programme to promote the rights and the
protection of the homeless in 12 cities. This was currently being worked on
in an inter-agency committee trying to strengthen the “Care for street
children” programme.
81. Non-governmental sources said that, between October 1995 and
September 1996, 314 people had died as a consequence of violence against the
socially marginalized. In almost 40 per cent of the cases those responsible
for the actions were unknown. Among the other cases, the paramilitary groups
were mainly responsible, accounting for 57 per cent of cases. Moreover, the
E/CN. 4/1998/38
page 18
responsibility for 15 of 24 collective executions of marginalized people was
attributed to them. Two and a half per cent of the cases were attributed to
guerrillas and 1.3 per cent to members of the public security forces.
Sixty per cent of these executions occurred in the country's six main cities
(Medellin, Barranquilla, BogotI, Cartagena, Cali and Cücuta)
Observations
82. The Special Rapporteur appreciates the Government's detailed response by
way of follow-up to the joint report of the Special Rapporteurs. He hopes
that the Constitutional Court's ruling that crimes against humanity could not
be service related and thus were amenable to civil and not military
jurisdiction would result in the transfer to the civilian justice system of
all cases of torture presently before the military justice system. He also
notes that the Human Rights Committee has deplored “the fact that gross and
massive human rights violations continue to occur in Colombia. . . [ in
particular] torture and other degrading treatment” (A/52/40, para. 278)
While information has started reaching him from the BogotI office of the
High Commissioner for Human Rights, the Special Rapporteur believes that over
the coming period, it will be desirable to review procedures for the exchange
of information. He believes the work of this office could be enhanced by
working in cooperation with a Special Rapporteur on the human rights situation
in Colombia.
Cuba
83. The Special Rapporteur transmitted three new cases to the Government.
In addition, he again transmitted those already sent in 1995 and 1996, on
which no reply had yet been received.
Observations
84. In the light of the conclusions and recommendations of the Committee
against Torture, as well as the information referred to in the addendum to the
present report (E/CN.4/1998/38/Add.1, paras. 82-84), the Special Rapporteur can
only reaffirm his observations of last year (E/CN.4/1997/7, para. 68).
C yp r us
85. The Special Rapporteur sent one new case to which the Government
replied. The Government also replied to one case transmitted in 1996.
Democratic Republic of the Congo
86. The Special Rapporteur addressed two urgent appeals to the Government in
conjunction with the Special Rapporteur on the situation of human rights in
the Democratic Republic of the Congo. One was on behalf of three persons, the
other on behalf of ten persons.
D i ibouti
87. The Special Rapporteur transmitted to the Government an urgent appeal on
behalf of five persons.
E/CN.4/1998/38
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Ecuador
88. The Special Rapporteur sent an urgent appeal on behalf of a group of
prisoners. In addition, he received a reply from the Government on cases
transmitted in 1995.
Eg ypt
89. By letter dated 28 April 1997, the Special Rapporteur advised the
Government that he had received information indicating that torture of persons
detained for political reasons continued to take place on a systematic basis.
In addition, the use of torture against persons detained in ordinary criminal
cases was said to occur with frequency. Torture was reported to be carried
out in the State Security Investigations Department (551) headquarters in
Lazoghly Square, 551 branches throughout the country, police stations and
Firaq al-Amn (security brigades) , where detainees were said to be held
incommunicado. The methods of torture reported include the administration of
electric shocks, beatings, suspension by the wrists or ankles, burning the
body with cigarettes, threats of rape or sexual abuse to the detainee or to
female relatives in his presence.
90. The Special Rapporteur also advised the Government that he had continued
to receive information according to which conditions of a number of prisons
were said to be extremely poor. On the whole, the prison system was said to
be characterized by the use of torture and other ill-treatment as a means of
discipline and punishment, the prevalence of contagious diseases such as
tuberculosis, lack of adequate medical care for prisoners and bans on visits
from relatives and lawyers. In this connection, particular allegations had
been received in respect of the High Security Prison (Al-Aqrab or the
Scorpion) . Prisoners were said to receive insufficient quantities of food and
the food received was said typically to be served from filthy buckets and
often infested with insects. Tuberculosis was reported to be widespread
inside the prison. Prisoners requiring hospitalization or specialized tests
such as x-rays were said to be denied access to such medical care, even upon
the recommendation of the prison doctor. According to a decision taken by the
Minister of the Interior on 20 December 1993, the prison was said to be
considered “closed”, meaning that visits of families and relatives are banned.
The Administrative Court was said to have issued five rulings cancelling the
closing decision, none of which were reportedly complied with by the Ministry
of the Interior. Torture and ill-treatment of prisoners was reportedly
widespread at the High Security Prison. Inmates were said to undergo
“reception parties” at Fayyom Prison upon entering (see E/CN.4/1997/7,
para. 71)
91. By the same letter the Special Rapporteur communicated to the Government
nine newly reported cases, some of them collective, on behalf of 12
individuals and a group of 100 prisoners. He also sought follow-up
information on two previous cases, involving 53 individuals, and retransmitted
a number of previously transmitted allegations to which he had not yet
received a reply. The Special Rapporteur further transmitted two urgent
appeals on behalf of the same four individuals. One appeal also raised the
case of a group of 250 farmers.
E/CN. 4/1998/38
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92. The Government replied to 14 cases, some of them collective,
involving 99 individuals, all transmitted in previous years.
Observations
93. The Special Rapporteur again expresses his appreciation for the
substantial efforts the Government has undertaken in order to respond to the
numerous allegations he has transmitted. He notes that in no case has a
police or security official been convicted and sentenced for torture. He
detects a willingness of the agencies of the administration of justice to
place too heavy a burden on the alleged victims pursuing their investigations,
thus implying a great willingness to close cases. The few cases of
disciplinary action, involving reduction of salary or transfer to another
police station, hardly suggest a serious commitment of the institution to
redress grave abuses of prisoners. His concerns as addressed last year have
not abated (E/CN.4/1997/7, para. 73). Preliminary contacts with the Permanent
Mission encourage him to hope that the Government will respond positively to
his request for an invitation to visit the country in the coming year.
Equatorial Guinea
94. The Special Rapporteur sent the Government four urgent appeals, to one
of which the Government replied.
Observations
95. The Special Rapporteur notes that the Special Rapporteur on the human
rights situation in Equatorial Guinea observed in his last report “that cases
of torture and ill-treatment of prisoners continue to occur, although the
number of complaints received is considerably lower than in previous years”
and that the “impunity of the perpetrators of human rights violations is
continuing” (E/CN.4/1997/54, paras. 40 and 44)
Ethiopia
96. The Special Rapporteur transmitted to the Government eight individual
cases, one of which had also been the object of an urgent appeal. In addition,
he submitted four other urgent appeals, one on behalf of a group of some
200 individuals and three on behalf of some 20 members of the Oromo ethnic
group. The Government replied to the appeal concerning the group of
200 individuals, to two appeals on the Oromo members and to another urgent
appeal on behalf of a large number of persons which had been transmitted in
1996 in conjunction with the Special Rapporteur on extrajudicial, summary or
arbitrary executions.
Observations
97. The consistency of allegations of torture, particularly as regards
persons in the hands of the army and suspected of involvement with the Oromo
Liberation Front,is a matter of concern to the Special Rapporteur. A thorough
inquiry into the detention and interrogation practices of the army in its
E/CN.4/1998/38
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counter-insurgency operations with a view to bringing such practices into line
with international standards is the minimum measure that should be undertaken
by the Government as a matter of urgency.
Georgia
98. In a letter of 5 February 1997, the Special Rapporteur informed the
Government that he had received reports indicating that most persons detained
for political reasons and some persons detained in ordinary criminal cases in
Georgia were subjected to torture or other ill-treatment during detention and
interrogation. Torture and ill-treatment were reportedly used to obtain
“confessions” or extract other information from detainees. The methods of
torture and ill-treatment reported included hanging upside down; scalding with
hot water; extraction of fingernails or toenails; application of electric
shocks; systematic beating, sometimes resulting in fractured bones or broken
teeth; and issuing of threats that members of the detainee's family would be
killed or tortured. Courts were said generally to refuse to exclude evidence,
including “confessions”, repudiated by defendants as having been obtained
through torture, and to fail to investigate such claims of torture.
99. Conditions in prisons and detention centres in the country were
reportedly abusive. Prisons were said to be severely overcrowded and
unsanitary, with contagious diseases such as tuberculosis and dysentery
widespread. Detainees also reportedly lacked adequate food and medical
treatment.
100. The Special Rapporteur also transmitted allegations concerning seven
persons.
Observations
101. The Special Rapporteur notes the concerns of the Committee against
Torture as regards the “volume of complaints of torture, particularly related
to the extraction of confessions . . . , the failure to investigate claims of
torture and to prosecute alleged offenders . . . (and) to make proper provision
for compensation, restitution and rehabilitation of victims of torture . . . the
grossly inadequate conditions in places of detention, including prisons .
(and) the alarming number of deaths in prison” (A/52/44, para. 120) . He also
stresses the Committee's recommendations, in particular, that proposing
abolition of incommunicado detention. He also notes the similar concerns
expressed by the Human Rights Committee (A/52/40, paras. 240-243) and its
recommendations (paras. 253-255)
Germany
102. By letter dated 17 November 1997, the Special Rapporteur advised the
Government that he had continued to receive allegations indicating that a
number of persons had been subjected to disproportionate or unnecessary force
while police officers were trying to restrain or arrest them, or to
ill-treatment in police custody. Victims were said to include mostly
foreigners, including asylum seekers, or members of ethnic minorities.
Beating, kicking and punching were the most reported forms of ill-treatment.
Criminal investigations were known to have been instituted, but their
E/CN. 4/1998/38
page 22
promptness, thoroughness and impartiality had been questioned. Few officers
were as a result said to have been prosecuted or sanctioned and compensation
had in several cases reportedly not been accorded.
103. The Special Rapporteur also transmitted six individual cases. With
respect to the cases previously transmitted, the Special Raporteur sent to the
Government comments made by the source to the reply on three instances and
requested follow-up information on another four.
Observations
104. The Special Rapporteur notes the concern of the Human Rights Committee
“that there exist instances of ill-treatment of persons by the police,
including foreigners and particularly members of the ethnic minorities and
asylum seekers” (A/52/40, para. 181)
Greece
105. The Special Rapporteur transmitted allegations concerning two persons,
to which the Government replied.
Guatemala
106. The Special Rapporteur transmitted three new cases of alleged torture to
the Government and requested additional information on two other cases
transmitted in 1996.
Haiti
107. In a letter of 9 June 1997, the Special Rapporteur advised the
Government that he had received information indicating that, since their
initial deployment in July 1995, the Police nationale d'HaIti had frequently
treated individuals with excessive force during arrest and beaten them in
police lock-ups, thus reflecting insufficient training and inadequate
leadership. Only in a few cases had investigations been carried out and those
responsible prosecuted and given appropriate sanctions, either at the
administrative or the judicial level. It was also reported that the Police
Nationale has not devoted sufficient resources to ensure that the Inspector
General's office has the necessary personnel and equipment to conduct thorough
investigations of police misconduct and to regularly visit police stations
around the country, as required by law.
108. The Special Rapporteur also transmitted allegations concerning four
cases.
Honduras
109. The Special Rapporteur transmitted two new cases to the Government. He
also transmitted various others sent in previous years on which no reply had
yet been received or on which he was requesting additional information. The
Government replied to all of them.
E/CN.4/1998/38
page 23
Hungary
110. The Special Rapporteur transmitted to the Government information
concerning one individual case.
India
111. By letter of 28 April 1997, the Special Rapporteur informed the
Government that he had received reports indicating that the use of torture by
police in Punjab was widespread. The methods of torture reported include
beatings with fists, boots, lathis (long bamboo canes) , pattas (leather straps
with wooden handles) , leather belts with metal buckles or rifle butts; being
suspended by the wrists or ankles and beaten; kachcha fansi (suspension of the
whole body from the wrists, which are tied behind the back) ; having the hands
trodden upon or hammered; application of electric shocks; burning of the skin,
sometimes with a hot iron rod; removing nails with pliers; cheera (forcing the
hips apart, sometimes to 180 degrees and often repeatedly, for 30 minutes or
more; and the roller method (a log of wood or ghotna (pestle for grinding
spices) is rolled over the thighs or calves with one or more police officers
standing upon it) ; and insertion of chili peppers into the rectum.
112. The Special Rapporteur transmitted new allegations concerning 16
persons, two of which the Government responded to, and forwarded additional
information concerning a previously transmitted urgent appeal to which the
Government had replied. The Special Rapporteur also made four urgent appeals,
two of which concerned the same person, and one of which was collective.
Observations
113. The continuing concern expressed over the years by the Special
Rapporteur about the extent and lethal nature of torture allegedly inflicted
by the law enforcement authorities remains undiminished. He notes the concern
expressed by the Human Rights Committee “about the incidence of custodial
deaths, rape and torture” in the country (A/52/40, para. 438) and again notes
his outstanding request for an invitation to visit the country, non-compliance
with which was also a matter of concern for the Committee.
Indonesia
114. In a letter of 2 July 1997, the Special Rapporteur informed the
Government that he had continued to receive reports alleging that the use of
torture and other ill-treatment by police and military personnel was
widespread. According to the information, persons detained for political
reasons were frequently first held incommunicado and interrogated in military
custody, where many incidents of torture allegedly occur, before being
transferred to police custody. In a letter of 28 October 1997, the Government
contested allegations of widespread torture, though acknowledging that
ill-treatment can sometimes occur, especially where individuals resist arrest
and thus cause themselves to be injured.
115. The Special Rapporteur also informed the Government of newly received
allegations concerning 23 persons, 14 of whom were from East Timor, and
supplied further information and questions regarding two previously
E/CN. 4/1998/38
page 24
transmitted cases to which the Government had replied. Responses were received
from the Government in each case, as well as on two other cases transmitted by
the Rapporteur in 1996. In addition, the Special Rapporteur made 14 urgent
appeals, 11 of which concerned East Timor, on behalf of 112 named individuals
and two groups, 11 of which the Government replied to.
Observations
116. As the Special Rapporteur observed last year, he “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”
117. He considers that the continuing unwillingness of the Government to
invite him to visit Indonesia and East Timor could be construed as being aimed
at avoiding direct and independent evaluation of the allegations and the
official denials.
Iran (Islamic Republic of )
118. The Special Rapporteur transmitted three urgent appeals, two of them in
conjunction with the Special Representative on the situation of human rights
in the Islamic Republic of Iran, concerning four individuals and a group of
several hundred persons.
Observations
119. The Special Rapporteur notes that, in his report to the General
Assembly, the Special Representative of the situation of human rights in the
Islamic Republic of Iran described himself as “deeply concerned at the
continuing reports of the use of cruel, inhuman or degrading treatment or
punishment in the Islamic Republic of Iran” (A/52/472, para. 31) . He
especially shares this concern in respect of continuing reported use of
stoning and lashing for offences of a moral nature.
I rag
Observations
120. Although he has not been in a position to transmit specific cases to the
Government, the Special Rapporteur notes the “particular concern” of the
Special Rapporteur on the situation of human rights in Iraq that “the practice
of torture continue [ s] to occur in Iraq (A/52/476, para. 56) and the “grave
concern” of the Human Rights Committee about “reports from many sources
concerning the high incidence of... torture and ill-treatment”
(CCPR/C/79/Add.84, para. 8).
Israel
121. On 11 June 1997, the Special Rapporteur informed the Government that he
had continued to receive information according to which a large number of
E/CN.4/1998/38
page 25
persons detained by the General Security Services (aSS) had been subjected to
torture or other ill-treatment during interrogation. Many if not all of the
reported methods of torture and other ill-treatment were said to be authorized
under the Landau guidelines, which remain unpublicized, allowing for the use
of “moderate physical pressure” under certain circumstances. These methods
include: violent shaking; tying the victim in painful positions; forcing the
victim to sit or stand in painful positions (shabeh); hooding, often with
malodorous sacks; sleep deprivation; enforced squatting; exposure to loud
music; and threats, including death threats.
122. The Special Rapporteur also transmitted to the Government six individual
cases and made seven urgent appeals, on behalf of 31 individuals. He further
retransmitted a number of allegations previously submitted to which no reply
had been received. The Government replied to three urgent appeals and
provided responses to five cases included in last year's report.
Observations
123. The Special Rapporteur appreciates the detailed responses received from
the Government and acknowledges again the dreadful challenges posed by
politically motivated terrorist activities. It is nevertheless clear that
Israel has not found means compatible with international law to interrogate
suspected terrorists. Nor, as indicated by the Tarabieh case mentioned in the
addendum to this report (E/CN.4/1998/38/Add.1, para. 214), does he share the
Government's confidence that the methods used are restricted to uses where a
“terrible disaster” looms (id., para ) . He notes the position of the
Committee against Torture which concludes, consistently with his own
observations last year, that the known methods of interrogation are “breaches
of article 16 [ prohibition of cruel, inhuman or degrading treatment or
punishment] and also constitute torture as defined in article 1 of the
Convention [ against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment] . This conclusion is particularly evident where such methods of
interrogation are used in combination which appears to be the standard case”
(A/52/44, para. 257)
Kenya
124. By letter of 17 February 1997, the Special Rapporteur advised the
Government that he had continued to receive information concerning widespread
instances of torture in Kenya. The methods of torture reported include:
beatings, including kicking to the sides while the victim is lying on his or
her back, beating on the soles of the feet or on the legs, beating all over
the body, beating with a sharp-edged pole and “boxing” of the ears; being held
in a hole which is progressively filled with water; exposure to cold;
administration of burns; administration of electric shocks; confinement in the
dark; forcing victims to maintain tiring postures; sexual abuse, including
rape, tightening of a wire tied around the testicles, insertion of objects
into the rectum, pricking of the genitals, and threats of rape to the victim
or the victim's family; forced exercise; and prevention of access to the
toilet.
E/CN. 4/1998/38
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125. Persons wishing to file a complaint against the police for ill-treatment
were said be discouraged or refused permission by police to fill out the
required form, which also has to be completed by a doctor. Even when such
forms were completed, they were said to be frequently lost or removed from
case files. Many victims reportedly did not complain because prior to their
release they might have been threatened by police that they would be
rearrested or face other adverse consequences if they did so.
126. The Special Rapporteur also received reports concerning some 50 persons
from Western Province suspected of links with the alleged opposition guerilla
groups February Eighteenth Movement (FEM) or the February Eighteenth
Resistance Army (FERA) , who were said to have been taken to an unknown
detention centre between January and September 1995. Detainees were allegedly
subjected to a variety of forms of torture, including many of those enumerated
above. They were reportedly held in solitary confinement in a block of
36 rooms, some 300 metres from where the torture sessions took place. It was
alleged that 12 or 13 officials dressed in suits would typically be present
during torture sessions, with the torture carried out by four persons and the
remaining officials observing and encouraging the torture. A number of
detainees were said to have been inspected by a doctor, accompanied by
three police officials, who appeared to be making a determination as to
whether the prisoners were fit for further “interrogation” . One prisoner was
reportedly not tortured for a period of one week, after a doctor in his
presence told police officials to let him rest. Most injured prisoners
examined by a doctor were given only tablets of paracetamol for their
injuries.
127. The Special Rapporteur informed the Government of newly received
allegations concerning five persons. He also requested additional information
regarding six previously transmitted cases, some of them collective, to which
the Government had replied that investigations were under way. In addition,
he retransmitted the remaining allegations to which no reply had been
received. One urgent appeal was also transmitted to the Government, on behalf
of an individual.
Observations
128. The Special Rapporteur remains concerned that the continuing flow of
allegations indicates the existence of a problem deserving serious attention,
albeit he acknowledges the firm decision of the Senior Resident Magistrate
referred to in the case described in paragraph 228 of the addendum to this
report. He draws attention to his outstanding request to visit the country.
Kuwait
129. The Special Rapporteur transmitted one urgent appeal on behalf of a
group of foreign nationals to which the Government replied.
Malaysia
130. The Special Rapporteur transmitted one urgent appeal on behalf of a
group of persons to which the Government replied.
E/CN.4/1998/38
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Maldives
131. The Special Rapporteur transmitted two urgent appeals.
Mauritania
132. The Special Rapporteur transmitted to the Government an urgent appeal on
behalf of five persons.
Mexico
133. The Special Rapporteur transmitted eight urgent appeals to the
Government, one of which jointly with the Working Group on Enforced or
Involuntary Disappearances. The Government provided information in connection
with seven of them, as well as two cases transmitted in 1995 and 1996
respectively.
Observations
134. The report of the Special Rapporteur's mission to Mexico
(E/CN.4/1998/38/Add.2) contains his conclusions and recommendations regarding
the situation from the perspective of his mandate.
Myanmar
135. By letter dated 21 February 1997, the Special Rapporteur informed the
Government that he had received reports indicating that the army ( tatmadaw )
had continued to use torture and ill-treatment against members of ethnic
minorities in the Shan and Mon States and the Tanintharyi (Tenasserim)
Division. Persons forced to perform portering duties for the army and
villagers suspected of having links with armed opposition groups were said to
be most vulnerable to such practices. Porters unable to carry their required
loads of supplies and ammunition were allegedly often punished by such methods
as repeated beatings with bamboo sticks or rifle butts and deprivation of
food, water, rest and medical treatment.
136. The Special Rapporteur had also been informed that a number of persons
who were forced to perform unpaid labour by the tatmadaw on construction
projects had allegedly been subjected to ill-treatment, including by being
held in chains and receiving inadequate food and medical care.
137. Furthermore, the Special Rapporteur advised the Government that he had
received information according to which a number of persons had allegedly been
beaten by the police during student demonstrations in Yangon in December 1996.
138. By its letter dated 25 April 1997, the Government stated generally, with
respect to the student demonstrations in December 1996, that there had been no
single incident leading to bloodshed. Concerning the general allegations of
the treatment of porters by members of the armed forces, the Government
informed the Special Rapporteur that the armed forces sometimes had to employ
civilian labourers for transportation of supplies and equipment over difficult
terrain in remote areas when launching operations against armed groups. The
law provided for the hiring of civilian labourers to assist the armed forces
E/CN. 4/1998/38
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on active duty. Such recruitment was done after consultations with the local
authorities and based on three criteria: the civilians had to be unemployed;
physically fit to work as porters; and a reasonable amount of wages had to be
fixed and agreed upon before recruiting. Civilian labourers thus recruited
were never required to accompany the troops to the actual scene of battle,
neither were they exposed to danger. The respective military unit had the
responsibility of paying wages and transport charges and providing
accommodation, food and medical coverage for the hired labourers. There also
existed volunteer porters and professional porters who earned their living by
offering their services as porters. The porters were treated well by the
armed forces.
139. The Government further responded to general allegations transmitted
in 1996, concerning abuses said to have been carried out by the Democratic
Kayin Buddhist Army (DKBA) , which was reported to receive logistical, tactical
and other support from the tatmadaw (E/CN.4/1997/7, para. 146) . The
Government stated that the DKBA was the fighting unit of the Democratic Kayin
Buddhist Organization (DKBO) , which broke away from the armed terrorist group
Kayin National Union (KNU) in 1994, due to dissatisfaction with the
leadership. When the KNU launched a massive offensive against the DKBO in
January 1995, during which hundreds of people, including civilians, were
killed, the local inhabitants had requested assistance from the tatmadaw . The
Government stated that, since the aspirations of the DKBO had revealed the
sincerity of their wishes for peace and stability of the region and coincided
with those of the Government, the tatmadaw had provided the necessary
logistical support. While the DKBA launched its assault on the KNTJ
headquarters, tatmadaw units secured the rear with the aim of protecting
nearby villages from attack by KNTJ remnants. Armed clashes had broken out at
times between the forces of the P U and the DKBO. As the Government had not
yet held any official peace talks with the DKBO, and as the DKBO had yet to
return to the legal fold, the Myanmar authorities had no control over the
DKBO. Neither could the authorities be held responsible for the activities of
the DKBO.
140. The Special Rapporteur also transmitted to the Government six newly
reported cases, two of them collective, on behalf of eight individuals and
retransmitted a number of cases, submitted in 1995 and 1996, to which no reply
had been received. In addition, he made two urgent appeals in conjunction
with the Special Rapporteur on the situation of human rights in Myanmar on
behalf of 15 individuals and some unnamed relatives of two of them. The
Government replied to one newly reported individual case and 12 previously
transmitted allegations concerning 39 individuals.
Observations
141. The Special Rapporteur appreciates the responses of the Government.
Nevertheless, he notes the conclusions 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, particularly in the context of
development programmes and counter-insurgency operations in minority-dominated
regions”. (A/52/484, para. 147)
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Namibia
142. The Special Rapporteur transmitted one urgent appeal to the Government
on behalf of one individual and his family.
Nepal
143. In a letter of 20 June 1997, the Special Rapporteur informed the
Government that he had continued to receive information according to which
persons suspected of being members or sympathizers of the Communist Party of
Nepal (Maoist) or its affiliate, the Samyukta Jana Morcha, were subjected to
torture or other ill-treatment following arrest, especially in the mid-western
region of Nepal. The methods of torture reported to be inflicted most
frequently were beatings on the soles of the feet ( falanga ) and the
application of rollers, usually in the form of a weighted bamboo cane, down
the legs of the victim ( belana ) . The latter method was said to cause muscle
damage and/or renal failure.
144. He also transmitted allegations concerning 14 individuals and a number
of unnamed persons.
145. On 27 March 1997, the Government replied to general allegations, as well
as one collective case, transmitted in 1996. The former concerned the alleged
ill-treatment of Maoist political activists in mid-western Nepal, reports of
repeated beatings, beatings to the soles of the feet, the placing of nettles
on the body and the use of rollers on the thighs, as well as alleged
incommunicado detention for over 24 hours. The Government denied each of the
allegations.
Observations
146. The consistency of allegations of torture and ill-treatment reaching the
Special Rapporteur indicate a pressing need for the Government to ensure
scrupulous investigations of the cases concerned and to put in place measures
that will avoid law enforcement officials having a sense of impunity when they
resort to criminal methods in the course of their work.
Niger
147. The Special Rapporteur transmitted to the Government reports concerning
four individuals. Two were members of a group of demonstrators said to have
been arrested in Niamey on 11 July 1996 then taken to the military camp at
Ekrafane.
Nigeria
148. The Special Rapporteur transmitted seven urgent appeals, some of them
collective, on behalf of 18 individuals. One urgent appeal was sent in
conjunction with the Chairman of the Working Group on Arbitrary Detention on
behalf of an individual case concerning which the Special Rapporteur had
already transmitted an urgent appeal in 1996. Two urgent appeals on behalf of
a group of journalists were transmitted in conjunction with the Special
Rapporteur on the promotion and protection of the right to freedom of opinion
E/CN. 4/1998/38
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and expression. The Government acknowledged receipt of three urgent appeals
and forwarded further information in relation to one appeal in particular.
Pakistan
149. By letter dated 17 November 1997, the Special Rapporteur advised the
Government that he had continued to receive reports, covering the situation
under successive governments until June 1997, on the widespread use of torture
and other cruel, inhuman or degrading treatment or punishment in Pakistan. To
some extent, torture would appear to have been facilitated by existing
legislation and the occurrence of unlawful detention, but the problem of
impunity and effective collusion of government officials with non-State actors
was also reported to constitute an important contributory factor to its
existence.
150. Torture, including rape, was often said to have been used by the police
to intimidate, humiliate or punish people in custody. Many victims had
reportedly died as a result, often without those allegedly responsible having
been brought to justice. Prisoners were frequently reported to have been
denied basic facilities, including medical treatment. Despite the announced
partial ban on fetters of 1996, the use of bar fetters in prison was said to
have continued in practice and a recommendation for their abolition by the Law
Commission in June 1997 had reportedly not yet been acted on. Whipping,
although in most cases understood as abrogated by the Abolition of the
Punishment of Whipping Act of 1996, reportedly remained applicable for certain
offences under Islamic law. The Zina Ordinance of 1979, which prescribes
punishments considered cruel, inhuman and degrading under international law,
was still applicable and could, due to its evidential requirements, expose
female victims of rape to the risk of being charged with an unlawful sexual
relationship. Rape by influential people was said to have been ignored by the
police. Victims of torture had reportedly faced problems when trying to
register complaints with the police who were often said to have refused
assistance. Complicity, acquiescence and indifference of government officials
in practice was further said to have been claimed, in particular, by female
victims of domestic violence and ill-treatment in the context of bonded labour
and tribal retribution.
151. The Special Rapporteur further requested the Government, by letter
dated 18 September 1997, to provide him with information on any steps taken to
implement the recommendations in his 1996 mission report on Pakistan
(E/CN.4/1997/7/Add.2) . In his letter of 17 November 1997, he recalled the
Government's attention to this request. He expressed particular concern about
reports that bar fetters and similar instruments of restraint continued to be
used and requested to receive information on the measures which had been taken
to terminate their use, referring, inter alia , to assurances by the Interim
Government that it had ordered an end to the use of fetters in prison.
152. The Special Rapporteur also transmitted allegations of five cases, some
of them collective, on behalf of seven individuals and a group of unnamed
persons. He transmitted updated information on one previously submitted
individual case and made one urgent appeal on behalf of one individual.
Furthermore, the Special Rapporteur retransmitted allegations transmitted in
1994, 1995 and 1996 to which no reply had been received.
E/CN.4/1998/38
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Observations
153. While aware that many of the outstanding cases occurred before the
present Government was elected, he notes that the State remains responsible
for investigating earlier cases and bringing to justice those identified to
have been responsible for acts of torture. He is disturbed to learn that
despite the assurances he had received, fetters may still be being used as a
form of punishment in jails. He is also aware of resistance to bringing
prison rules into line with the Abolition of the Punishment of Whipping Act
and with the Law Commission's recommendation that the use of fetters as a
punishment be abolished. In general, he would urge the Government to supply
information on the follow-up that may have been given to the recommendations
contained in the report of his mission.
Peru
154. By letter dated 26 May 1997 the Special Rapporteur advised the
Government that he had received information that torture continued to be
widely practised in the country, both against those suspected of common
criminal offences and against those suspected of offences of a political
nature, and not only in the zones under a state of emergency. In particular,
this was alleged to be done in the towns and cities by units of the
anti-terrorist police (DINCOTE) , and in the rural areas by the armed forces
having control over the zone because of the state of emergency. Various
aspects of the anti-terrorist legislation would appear to contribute to this
situation. They include the period of time said to be available to the police
to interrogate suspects and bring charges, which would seem to be almost
unlimited. During their inquiries the police can hold someone in custody for
up to 15 days and, if they decide that the proper completion of the
investigation so requires, they can extend this period indefinitely.
Moreover, the type of evidence most commonly presented by the police against
persons suspected of terrorist offences was statements by these or other
suspects, often unsupported and even contradicted by other evidence.
155. It was reported that prison conditions were particularly bad for persons
serving a sentence under the anti-terrorist legislation. These prisoners were
usually kept in solitary confinement for the first year of their sentence,
were allowed to leave their cell for only 30 minutes a day and to receive
visits only from their lawyers. Only after the first year were they allowed
visits from relatives (30 minutes a month for adults and once every
three months for children)
156. In the same letter the Special Rapporteur transmitted to the
Government 22 new cases, some of them collective cases, and again transmitted
others sent in 1996 on which no reply had been received from the Government.
The Government replied to some of the new cases and to some of those
transmitted in previous years. The Special Rapporteur also made an urgent
appeal on behalf of two persons, to which the Government replied.
E/CN. 4/1998/38
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Observations
157. The Special Rapporteur appreciates the responses from the Government.
He continues to believe that his observations of last year remain applicable
(E/CN.4/1997/7, paras. 157-158).
Republic of Korea
158. By letter dated 11 June 1997, the Special Rapporteur advised the
Government that he had received information indicating that the use of sleep
deprivation and threats against detainees undergoing interrogation by police
in the Republic of Korea were routine. Some detainees were also allegedly
subjected to beatings. Because detainees were not always permitted to see
lawyers prior to or during interrogation and because the families of detainees
were not always informed of the place of detention, many detained persons were
said to have been held in what amounts to prolonged incommunicado detention, a
condition which facilitates torture and other ill-treatment. Detainees were
allegedly unable to gain prompt access to a judge under the criminal procedure
law in force, as such access was said to be determined upon written
application by the prosecution or on the initiative of the judge. According
to information received at the time, suspects may be detained for up to
30 days prior to indictment or for up to 50 days in the cases of persons first
detained for some offences under the National Security Law. Courts were said
often to fail to inquire into allegations by defendants that their
“confessions” had been obtained while undergoing interrogation under torture
or other ill-treatment and such “confessions” were frequently admitted as
evidence at trial.
159. In response to these allegations, the Government denied in its letter
of 15 September 1997 that torture and other forms of ill-treatment were
committed during interrogation. It stated that both the Constitution and the
Criminal Code prohibit torture and inhumane treatment and that the revised
Penal Procedure Code of 1995 obligated the prosecutor to inspect regularly
detention facilities of police stations and confinement areas of any
investigating bureau. The Constitution and Penal Procedure Code also provided
that the defence counsel or family of a suspect or accused under arrest or
detention had to be notified without delay regarding the charges and the
reasons for, the time and the place of the arrest or detention. Under no
circumstances could contact with family or counsel be denied. With respect to
the detention periods, the Government stated that the maximum detention period
for a general crime was 30 days. The maximum detention period at a police
station and public prosecutor's office was 10 days at each place respectively.
The detention period at a public prosecutor's office could be extended an
additional 10 days with the approval of a judge. For some offences under the
National Security Law requiring long-term, specialized investigations and
information-gathering procedures, the maximum detention period could be
extended to 50 days with a judge's permission. The Government further stated
that the Constitution and the Penal Procedure Code both stipulate that
confessions likely to have been extracted involuntarily due to torture, for
example, could not be admitted as evidence of guilt. Any person who had
suffered torture or inhumane treatment could file a complaint with the
judicial authorities and if it related to the scope of duty of a public
official, demand compensation from the State. This said, the Government added
E/CN.4/1998/38
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that some defendants make false claims of torture and ill-treatment in order
to avoid criminal punishment, but the validity of such claims would be fully
investigated.
160. The Special Rapporteur also transmitted one newly reported individual
case. With respect to two previously transmitted cases the Special Rapporteur
sent to the Government comments made by the source to the Government's reply.
The Government replied to the newly transmitted individual case, to a
collective case transmitted in 1996 and to the comments by the source
concerning two previously transmitted cases.
Romania
161. The Special Rapporteur transmitted to the Government new allegations
concerning 20 persons. He also retransmitted general allegations regarding
ill-treatment on police premises, and the manner in which investigations are
conducted (E/CN.4/1997/7, paras. 166-167), as well as 10 individual cases
transmitted in 1995 and 1996, to which no reply had been received.
Observations
162. The Special Rapporteur regrets the absence of responses to numerous
cases over the year.
Russian Federation
163. By letter dated 17 November 1997, the Special Rapporteur informed the
Government that he had continued to receive allegations concerning the use of
torture and other forms of ill-treatment in the Russian Federation. Several
allegations concerned cases of persons alleged to have been tortured or
ill-treated in the context of the conflict in the Chechen Republic. Other
reports alleged resort to torture and ill-treatment by the police,
particularly during pre-trial detention. Torture was mainly reported to occur
immediately after arrest or during interrogation to intimidate detainees or to
extract confessions. But also after being tried, detainees were still said to
be at risk of torture and ill-treatment in prison, sometimes allegedly by
fellow prisoners in collusion with the prison authorities.
164. Torture methods most commonly reported included beatings, electric
shocks, asphyxiation ( slonik ) and particularly painful methods of physical
restraint ( konvert and lastochka ) . The slonik method was said to consist of
the wearing of a gas mask with the oxygen supply cut off. For the konvert
method the person was reportedly secured in a position with the legs pulled up
to the head. The lastochka method was said to entail the handcuffing of the
hands behind the back but above the level of the head, as a result of which
the back was arched in a painful position. Furthermore, detention conditions
were reportedly still characterized by overcrowding and unsatisfactory
sanitation and medical care, amounting to ill-treatment. Generally, members
of ethnic minorities were alleged to be at particular risk of ill-treatment.
Some asylum-seekers had allegedly been subjected to refoulement. Use of
torture and ill-treatment by the police had further been reported to be
systematic in certain areas, including Mordovia and the regions of Magadan and
Bryansk.
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165. Torture and ±11-treatment had also been reported to occur on a wide
scale within the armed forces, where senior soldiers and commanding officers
were often alleged to mistreat young recruits without the authorities taking
appropriate remedial measures. Besides the soldiers' poor living conditions,
reports had emphasized the continuing occurrence of torture methods such as
withholding food, rape, beatings and other humiliating and degrading
punishments.
166. The information received suggested that prompt, effective and impartial
investigations had often not been carried out by the authorities, with the
result that those responsible were rarely said to be prosecuted. Where
perpetrators had been sentenced, penalties had in several cases been
considered comparatively light. To some extent existing legislation,
allowing, inter alia , for prolonged pre-trial detention, was still said to
create favourable conditions for the occurrence of torture and ill-treatment.
167. The Special Rapporteur also transmitted to the Government 28 cases, some
of them collective, on behalf of 43 identified individuals, a group of four
unnamed persons and a number of unnamed prisoners and soldiers. He further
sought follow-up information regarding the developments in a number of cases
submitted in 1995 to which replies had been received. In addition, the
Special Rapporteur retransmitted two cases to which no reply had been
received. The Government replied to a number of cases transmitted in 1996.
Follow-up to the recommendations made by the Special Rapporteur subsequent to
his visit to the Russian Federation
168. 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 and 1996, the Government had informed the
Special Rapporteur of measures that had been or were to be taken pursuant to
the recommendations in his report (see E/CN.4/1996/35, paras. 142-148 and
E/CN.4/1997/7, paras. 172-175). During the present reporting period, the
Government continued to inform the Special Rapporteur about such measures.
Thus, it reported that, on 14 June 1997, the President of the
Russian Federation issued decree No. 593 concerning the repeal of certain
presidential decisions and transmitted a copy of the decree. In particular,
the decree provided, in connection with the adoption of the new Criminal Code,
for the repeal of presidential decree No. 1226 of 14 June 1994 under which the
law enforcement agencies were authorized to apprehend and hold citizens under
arrest for a period of up to 30 days on suspicion of having committed a
serious crime, without bringing charges, without any preventive measures
having been decreed and in the absence of a judicial warrant.
169. On 3 September 1997, the Government advised the Special Rapporteur that,
on 8 July 1997, the Government had adopted decision No. 833 on the
establishment of minimum standards of nutrition and living conditions for
persons sentenced to deprivation of liberty. The purpose of the decision was
to improve the conditions of detention of prisoners in conformity with the
Standard Minimum Rules for the Treatment of prisoners.
E/CN.4/1998/38
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Observations
170. The Special Rapporteur continues to appreciate the information provided
by the Government, both by way of follow-up to his 1994 mission and as regards
individual cases. He also notes the concern of the Committee against Torture
which is consistent with the information before him (A/52/44, para. 42) . He
welcomes the establishment of minimum standards of nutrition and living
conditions for persons sentenced to deprivation of liberty. He notes,
however, that in the past existing standards in the same fields had remained
unimplemented, because of the lack of resources allocated to the
administration of places of deprivation of liberty. He also remains
particularly concerned about the more acute problem of torturous conditions of
detention in pre-trial detention centres (SIZO 5) , which appear to persist on a
widespread scale despite concrete recommendations he made in the report of his
visit to alleviate the problem. As far as investigations of allegations of
ill-treatment of persons under interrogation are concerned, he believes that
national and international misgivings about the effectiveness of such
investigations will continue as long as the procuracy remains responsible for
both prosecution of ordinary criminal suspects and investigation of abuses
committed by law enforcement officials.
Rwanda
171. The Special Rapporteur transmitted to the Government two urgent appeals,
one in conjunction with the Chairman-Rapporteur of the Working Group on
Arbitrary Detention, the other in conjunction with the Special Rapporteurs on
the situation of human rights in Rwanda, on extrajudicial, summary or
arbitrary executions, and on the independence of judges and lawyers. The
latter concerned the way cases against persons accused of genocide were said
to be conducted.
Senegal
172. In a letter dated 10 July 1997, the Government sent the Special
Rapporteur background information on recent developments to do with the
protection of human rights in Senegal. On the subject of torture, the
Government stated that it had recognized the competence of the Committee
against Torture to consider communications from individuals on 30 August 1996,
that there were plans to allow counsel to be present during detention in
custody, that the National Assembly had passed a law defining and explicitly
making a criminal offence under the Criminal Code of any act of torture, and
that fresh instructions had been issued to the Ministry of Justice, the armed
forces and all law enforcement authorities to track down and prosecute
violations of human rights and bring the perpetrators to justice.
173. The Special Rapporteur also received a reply from the Government
concerning five cases, one of them involving several individuals, transmitted
to it in 1996, and one case transmitted in 1994.
Spain
174. On 24 January 1997 the Special Rapporteur transmitted complaints about a
new case to the Government, and the Government replied. On 26 May 1997 the
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Rapporteur transmitted four further cases, as well as additional information
with regard to the one transmitted in January. On 4 August 1997 the
Government replied with regard to the five cases.
Observations
175. The information before the Special Rapporteur is consistent with that
before the Committee against Torture which continued to receive regular
reports of torture and ill-treatment, observing that in spite of legal
restrictions on their use, extended periods of incommunicado detention, during
which the detainee cannot rely on the assistance of a lawyer of his choice,
seem to facilitate the practice of torture (see CAT/C/314) . The Special
Rapporteur is aware of the difficulties of combating terrorist activities and
the possibility that in such situations false, as well as true, but
unprovable, allegations of torture may be made. He recommends that the
Government give serious consideration to the possibility of introducing a
system of video recording of interrogations. This could help substantially
not only to protect prisoners from abuse, but also to protect law enforcement
officials from false accusations.
Sri Lanka
176. The Special Rapporteur transmitted allegations concerning three
individual cases.
Sudan
177. The Special Rapporteur transmitted eight urgent appeals to the
Government, all in conjunction with the Special Rapporteur on the situation of
human rights in the Sudan. Two appeals were made on behalf of individual
cases. The other six appeals were collective on behalf of a total number of
163 named individuals and one group of 775 unidentified children, reportedly
held at Al Huda camp at Abu Dum, a facility for street children.
178. In addition, the Special Rapporteur transmitted to the Government a
letter on behalf of a group of some 50 women in conjunction with the Special
Rapporteurs on the situation of human rights in the Sudan, on violence against
women, and on the promotion and protection of the right to freedom of opinion
and expression.
179. The Government responded to one individual urgent appeal, three
collective urgent appeals on behalf of 74 persons, as well as to the
collective appeal on behalf of the group of children. The Government also
provided replies to 19 cases concerning 46 individuals which had been
transmitted in previous years.
Observations
180. The Special Rapporteur notes the view of the Human Rights Committee
which stated that it was troubled by the number of reports of torture in the
Sudan (CCPR/C/79/Add.85, para. 12). While appreciating the Government's
replies to information he has transmitted, he is constrained to express his
shock at the incident of 1 December 1997 which evidenced unprovoked and
E/CN.4/1998/38
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unrestrained brutality by the law enforcement officials involved, as well as
at the allegations of judicial complicity in and aggravation of the cruelty of
the events. He also believes that the incident must be regarded as a
calculated defiance of the United Nations and its continuing concern to
promote respect for human rights in the Sudan.
Swaziland
181. The Special Rapporteur made one urgent appeal on behalf of one
individual, to which the Government replied.
Sweden
182. The Special Rapporteur made one urgent appeal on behalf of one asylum
seeker.
Switzerland
183. The Special Rapporteur, in conjunction with the Special Rapporteur on
the independence of judges and lawyers, transmitted allegations concerning
one person, to which the Government responded on two occasions. The
Government also sent replies to two cases transmitted in 1996, concerning
three individuals.
Observations
184. The Special Rapporteur appreciates the detailed responses of the
Government. The facts in the Nwankavo case, where there was overwhelming
evidence of abuse leading finally to some welcome disciplinary action against
the law enforcement officials involved, suggest a judicial disposition
precipitately and prematurely to believe the police and to disbelieve the
foreign accused/complainant, as well as a reluctance fully to rectify the
original wrong. He notes the concern of the Human Rights Committee “at the
numerous allegations of ill-treatment in the course of arrests or police
custody, particularly in respect of foreign nationals or Swiss citizens of
foreign origin and . . . reports on the failure of the authorities to follow up
complaints of ill-treatment by the police and the disproportionate nature, if
not absence, of penalties” (A/52/40, para. 98) . The Committee against Torture
has expressed similar concerns (see CAT/C/308)
Syrian Arab Republic
185. The Special Rapporteur transmitted two urgent appeals on behalf of
two individuals. The Government replied to one of the appeals.
Tunisia
186. The Special Rapporteur transmitted to the Government an urgent appeal on
behalf of two people, and received a reply from the Government. He also had
replies from the Government concerning two cases submitted in 1996.
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Turkey
187. By letter of 21 May 1997, the Special Rapporteur advised the Government
that he had continued to receive information concerning the widespread use of
torture in Turkey, including that inflicted upon a significant number of
children. According to the information, torture was practised against most
persons interrogated by the Anti-Terror Branch of the police and the
gendarmerie, as well as against many persons detained by the police in
ordinary criminal cases. Torture was reportedly administered to extract
“confessions”, to obtain information, to intimidate detainees into becoming
police informants, or as informal or summary punishment for petty offences or
suspected sympathy for illegal organizations.
188. The following methods of torture were said to be common and often
employed in concert with each other: administration of electric shocks;
hanging by the arms in a variety of positions, including with the arms behind
the back (“Palestinian hanging”) ; spraying with high-pressure water; sexual
abuse, include squeezing of the testicles or breasts; beatings with fists,
night sticks or sandbags; blindfolding; being stripped naked; and being
exposed to extreme temperatures. Much of the most severe torture was said to
occur in the early days of detention, so that by the time a detainee appeared
in court or underwent a physical examination, there would remain little or no
physical evidence that torture had taken place.
189. The Government informed the Special Rapporteur of a law on the
protection of persons in detention adopted on 6 March 1997. The stated aim of
the law is to reduce maximum periods of detention to a level compatible with
European and international standards. In the case of ordinary crimes, it
requires a detainee to be brought before a magistrate within 24 hours of
arrest, and if the public prosecutor wishes to prolong the detention in order
to conclude investigations, he must obtain the consent of the magistrate. For
crimes falling within the jurisdiction of the State Security Courts, the
period within which the suspect must be brought before a judge is 48 hours,
but the public prosecutor may order this to be prolonged for up to four days
if there are difficulties in collecting evidence, or for other similar
reasons. Any further extension may only be obtained with the permission of
the judge, up to a maximum of seven days, with the exception of regions under
the state of emergency, where the judge may extend the period up to 10 days.
Other provisions of the law include limitation of the jurisdiction of the
State Security Court to crimes against the integrity and authority of the
State, and the right of the detainee to see a lawyer at any time. The judge
may choose to withold information from the detainee where he thinks it
“appropriate”, at least until a public case is begun, and the judge or a
substitute may also be present during the meeting with the lawyer if required
by the cause of arrest. It was also reported that emphasis would be placed on
the practical implementation of this law, that a committee would be
established to monitor its implementation, and that instructions had been
given to governors and provincial police directorates to prevent ill-treatment
of suspects.
190. The Government also provided the Special Rapporteur with some
information about alleged activities of the Kurdish Workers Party (PKK) , as
presented in an article from the Observer newspaper of 28 September 1997.
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191. The Special Rapporteur transmitted to the Government new allegations
concerning 7 individuals and 3 groups of 12, 6 and 35 persons respectively.
Replies were received to five of these cases as well as to four cases
transmitted in 1996. The Special Rapporteur also sought follow-up information
on developments in investigations and judicial proceedings in a number of
cases transmitted in 1996 to which the Government had replied. Three of these
concerned individuals, and three were collective, arising out of disturbances
at a number of prisons in two cases, and the arrest of a group of students in
the third. Finally, he retransmitted allegations first sent in 1995 and 1996,
concerning six persons, to which no reply had been received.
192. The Special Rapporteur made five urgent appeals, all collective, on
behalf of 68 persons. He received replies to three of the appeals. The
Government also replied to two collective urgent appeals made in 1996.
Observations
193. The Special Rapporteur appreciates the responses of the Government and
welcomes the bringing of safeguards into line with international standards,
though it is doubtful that, in cases where the law provides for a four-day
delay before a detained person is brought before a magistrate, the relevant
international standards are met. He also welcomes the Government's invitation
to him to visit the country in the last quarter of 1998. While indicating
willingness to visit the country sooner, he has accepted the invitation.
Ukraine
194. The Special Rapporteur transmitted one urgent appeal on behalf of
one person and received a reply from the Government.
Observations
195. The Special Rapporteur appreciates the response of the Government. He
also notes that the Committee against Torture has expressed concern “about the
large number of reports by non-governmental organizations of cases of torture
and violence committed by officials during preliminary investigations, causing
suffering, bodily injury and, in a number of cases, death” (A/52/44,
para. 131).
United Kingdom of Great Britain and Northern Ireland
196. The Special Rapporteur transmitted allegations concerning two persons,
to which he received a reply.
United Republic of Tanzania
197. The Special Rapporteur transmitted to the Government the medical reports
relating to an individual case included in last year's report, on which the
Government submitted its observations.
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United States of America
198. By letter dated 17 November 1997, the Special Rapporteur informed the
Government that he had received reports addressing in particular allegations
of the use of excessive force by police officers in the New York City Police
Department (NYPD) and the ill-treatment of inmates in prisons.
199. Excessive physical force by police officers in the NYPD had allegedly
been used in the course of arrests, disputes in public places and sometimes in
police custody. Repeated kicking and punching with fists, batons or other
objects were the most frequently reported forms of ill-treatment. Sometimes,
force was said to have been used after the suspect had already been handcuffed
or otherwise restrained. In some cases, suspects were said to have died after
police officers had forcibly restrained them. Practices of applying pressure
to the chest or neck, or placing suspects face-down in restraints with
resulting restrictions on respiratory movement may have led to asphyxia and
were in some cases said to have been fatal. Victims were said to come from
various backgrounds although many were alleged to be members of racial
minorities.
200. Regarding the ill-treatment of inmates in prisons, concerns had been
expressed that the reintroduction of chain gangs in the States of Alabama,
Arizona, Florida and others might constitute a form of cruel, inhuman or
degrading treatment or punishment. Prisoners in chain gangs were reportedly
required to perform heavy manual labour, such as rock-breaking or clearing
rubbish from the highway, while shackled together (or with their own legs
chained together) with metal chains, exposed to the public. In Alabama, for
example, prisoners attached to chain gangs were said to have to work
10-12 hours a day dressed in work suits imprinted with the words “Alabama
chain gang” . The chain gangs were said to be guarded by armed officers and
dogs. Prisoners reportedly had to remain chained when using toilet
facilities. Apparently, efforts had been undertaken to prohibit the practice
in Alabama, but the outcome was not known to the Special Rapporteur. Reports
concerning Alabama had further alleged the practice of handcuffing prisoners
to a hitching rail in the hot sun as punishment for refusal to work, causing
numbness, dizziness and pain.
201. Allegations had also been received concerning the abusive use of
electro-shock stun belts and stun guns. According to the information
received, stun devices, which incapacitate an inmate by transmitting electric
shocks, can reportedly cause high levels of pain and may result in serious
injuries, possibly even death in certain circumstances. Prolonged or repeated
application of stun devices is allegedly not sufficiently prevented by their
technological design. Reportedly, the devices may also have indiscriminate
effects in that people in contact with the target can receive shocks as well.
Although some States, including New York, Illinois and New Jersey, as well as
Washington D.C., had reportedly banned the use of stun weapons for law
enforcement and correctional purposes, they were still said to be used in
several other States. Remote-controlled electro-shock stun belts had
reportedly been introduced by a decision of the Federal Bureau of Prisons in
1994 to prevent high-risk inmates from escaping during transportation and
court appearances. Although the exact medical effects of the stun belt were
reportedly still unknown, its use was said to have been promoted as an
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alternative to shackles or leg-irons. Activation of the belt reportedly
transmits a 50,000-volt shock to the left kidney, through blood vessels and
nerves for eight seconds, causing severe pain, instant immobilization, and
possibly involuntary defecation and urination. Stun belts had allegedly
already been used as instruments of restraint during judicial hearings in
violation of the Standard Minimum Rules for the Treatment of Prisoners which
prohibit the use of restraints on prisoners when appearing before a judicial
authority. Furthermore, serious concerns had been expressed as to the nature
of such belts as a device designed to humiliate and degrade.
202. The Special Rapporteur also transmitted 12 individual cases to the
Government. He further retransmitted the allegations sent in 1995 concerning
which the Government had provided a general reply but had stated at the same
time that they would be forwarded to the appropriate authorities for
additional information, which had not yet been received by the Special
Rapporteur.
Observations
203. The Special Rapporteur is concerned at the use of practices such as
chain gangs, of instruments of restraint in court and of stun belts and stun
guns, some of which can only be intended to be afflictive and degrading,
others of which have the same effect. He urges the Government to use all
means, including judicial ones, to review the compatibility of such measures
with the affected persons' civil rights.
Venezuela
204. In a letter dated 26 May 1997 the Special Rapporteur transmitted
complaints about three new cases to the Government. In addition, he again
transmitted a number of cases sent in 1996 on which no reply had yet been
received. The Special Rapporteur also transmitted an urgent appeal on behalf
of one person. The Government provided information on three cases sent by the
Special Rapporteur in 1996.
205. In a letter dated 17 September 1997 the Special Rapporteur reminded the
Government of the recommendations included in his report on his visit to the
country in June 1996 (E/CN.4/1997/7/Add.3), and requested information on
measures taken by the Government to put those recommendations into practice.
Observations
206. The Government informed the Special Rapporteur that on 15 October 1997
the Supreme Court of Justice declared the Vagrants Act null and void. The
Special Rapporteur regrets that he has not received any information from the
Government on any follow-up given to the recommendations contained in the
report of his 1996 visit to the country.
Yemen
207. By letter dated 9 June 1997, the Special Rapporteur advised the
Government that he had received information indicating that persons detained
for political reasons, particularly those arrested by the Political Security
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Branch of the security forces, were often held incommunicado for prolonged
periods, sometimes weeks or months, without access to lawyers and family
members. Torture was said to be inflicted systematically against such
detainees. Military intelligence, criminal investigation police and members
of the armed forces also allegedly used torture on a widespread basis, against
both political suspects and common law detainees. Officials carrying out
torture were said usually to act with impunity, as few investigations of such
officials had reportedly been carried out.
208. The methods of torture reported included: beatings all over the body,
including with rifle butts, iron rods, cables and sticks; sexual assault,
including rape; threat of rape of the victim or his or her relatives in his or
her presence; application of electric shocks; suspension from a metal bar
inserted between the hands and knees which are tied together (“Kentucky
Farrul”); being urinated on; being walked on while lying naked on slabs of
concrete; prolonged solitary confinement; shackling for lengthy periods;
burning with cigarettes; beatings on the soles of the feat ( falaga ) ; dousing
with cold water; suspension, sometimes upside down, from the ceiling or window
while simultaneously being subjected to other forms of torture; whipping and
lashing; sleep deprivation; being kept in adverse weather conditions; being
tied to a chair or bound with ropes while being subjected to other forms of
torture; and forced head shaving.
209. Members of the security forces were also said to carry out abductions
and beatings of political opposition figures as reprisal for their political
activities and/or to dissuade them from engaging in such activities in the
future.
210. The Special Rapporteur also informed the Government that he had received
information concerning the application of corporal punishment in Yemen. Under
the Penal Code enacted in 1994, fornication, when the offender is unmarried,
is punishable by 100 lashes and adultery is punishable by death by stoning
(articles 263 and 264) . Consumption of alcohol and slander are punishable by
80 lashes (articles 283 and 289) . Amputation of the right hand is prescribed
for a first theft offence and amputation of the left foot at the ankle for a
subsequent offence (article 298) . Highway robbery is punishable by amputation
of the right hand and left foot (article 307 (2)).
211. Flogging was said to be carried out on a regular basis. Defendants were
reportedly often flogged immediately upon trial without appeal to higher
courts, as such defendants are generally released after the flogging, whereas
they might spend lengthy periods in detention during any appeal process they
might pursue. Judges were said to face threats or other pressure from
security forces to convict defendants in corporal punishment cases.
212. The Special Rapporteur also transmitted five cases, several of them
collective, concerning 7 named, 18 unnamed individuals, and the detainees in
Si'un prison. Furthermore, he made three urgent appeals on behalf of 11 named
and 28 unnamed individuals. The Government responded to one urgent appeal on
behalf of two individuals sentenced to corporal punishment.
E/CN.4/1998/38
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Observations
213. The allegations received should be the subject of independent and
impartial investigation. The Special Rapporteur would be grateful to receive
the details and results of such investigations. As far as the imposition of
corporal punishment is concerned, he notes that the Government's invocation of
judicial independence in the application of Shari'a (E/CN.4/1998/38/Add.1,
para. 479) does not relieve the State of Yemen from its obligation under
international law to prevent the infliction of cruel, inhuman and degrading
punishment.
Yugoslavia
214. By letter dated 9 June 1997, the Special Rapporteur advised the
Government that he had received information indicating that police personnel
in many areas of the Republic frequently resorted to the use of force for the
purpose of obtaining information or “confessions” or as a means of informal
punishment. The methods of ill-treatment and torture reported included
beatings with fists, police clubs, or other wooden or metal clubs; striking
the victim's head against the wall, floor or automobile; and application of
electric shocks. Beatings were said to be applied typically to the head and
sensitive parts of the body, such as the soles of the feet and kidney areas.
Police inflicting beatings allegedly often placed bullet-proof vests upon
victims, so as to reduce the visible evidence of physical injury.
215. Law enforcement officers allegedly often threatened victims of abuse to
dissuade them from filing complaints about their treatment or to prompt them
to drop charges once they were filed. In some instances, police had
reportedly initiated proceedings against victims in reprisal for charges filed
against police personnel. In addition, the public prosecutors' offices were
said frequently to fail to take action on criminal complaints against police
officers and to fail to give notice of dismissal of complaints or to meet time
limits for initiating action on the complaints. When proceedings did take
place involving charged police officers, the presence of the accused officers
in court was said to be often impossible to secure, as the court may only
request that the accused officer's superiors secure their presence. Judicial
officials allegedly often failed to act independently, by accepting police
officers' accounts at face value, while questioning extensively the alleged
victim. Guilty verdicts against police officers were said almost always to
result in suspended sentences.
216. The Special Rapporteur also transmitted 10 cases, one of them
collective, on behalf of 11 individuals, as well as two urgent appeals on
behalf of two groups of demonstrators. One group concerned 350 individuals.
The Government replied to 9 cases on behalf of 10 individuals.
Observations
217. The Special Rapporteur appreciates the responses of the Government.
However, several of those responses are consistent with the allegations of the
reluctance of public prosecutors to pursue charges against accused law
enforcement officials. They also confirm the applicability of short time
limits for the bringing of charges. Such limits are particularly
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inappropriate for crimes such as torture or similar ill-treatment perpetrated
by public officials. He notes the finding of the Special Rapporteur on the
situation of human rights in the territory of the former Yugoslavia who also
“continues to receive reports of torture and ill-treatment from various parts
of the country” and who emphasizes “her concern about the question of
impunity, which, unless addressed by the Government, will continue to
facilitate further acts of torture” (A/52/490, para. 159)
Zambia
218. The Special Rapporteur transmitted one urgent appeal to the Government
on behalf of seven individuals and a number of unnamed persons.
Other communications: information transmitted
to the Palestinian Authority
219. The Special Rapporteur made one urgent appeal on behalf of one
individual.
IV. CONCLUSIONS AND RECOMMENDATIONS
220. As he comes to the end of his first full term of office, the Special
Rapporteur can only be disappointed at the high incidence of torture in many
countries, while noting that it has substantially diminished in some, notably
where United Nations field operations are in place pursuant to a peace
agreement. How far the progress can be attributed to the field presence and
how far to the ending of the conflict is difficult to assess. Both factors
may be assumed to be making a contribution.
221. Regarding the continuing prevalence of the practice in so many
countries, the Special Rapporteur notes that in the past he has focused most
of his recommendations on measures that can be taken by the countries where
the torture takes place (see E/CN.4/1995/34, para. 926) . As he has pointed
out, impunity of the perpetrators is at the heart of the problem, whether by
leaving detainees at the unsupervised mercy of their captors and interrogators
without access to the outside world (incommunicado detention) , thus ensuring
that evidence of the crime of torture will not emerge, or by other means of
manipulating the criminal justice system so as to prevent torturers from being
brought to justice. This may be done by passing laws aimed at relieving the
perpetrators from criminal responsibility (amnesties, acts of indemnity and so
on) , that is, de lure impunity, or by procedural means of blocking the
workings of justice, that is, de facto impunity.
222. In the light of recent developments, the Special Rapporteur deems it
useful to address measures that can be taken by the international community to
help end impunity for human rights crimes such as torture. Most topical is
the process currently under way of drafting a statute for an International
Criminal Court. This is a very positive development as the world approaches
the twenty-first century.
223. It is expected that any such court would be able to try crimes against
humanity. It is also expected that the statute will reflect (as is already
the case as regards the statutes of the International Criminal Tribunals for
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the Former Yugoslavia and for Rwanda) that crimes against humanity can occur
whether or not committed in the course of armed conflict, international or
national. It is further to be hoped that the threshold of application will
not be unreasonably high. For instance, the scope of the practices may well
be required to be systematic or widespread, but a prosecutor should not have
to prove both elements. Moreover, individual incidents taking place in the
context of the practice should be amenable to the proposed court's
jurisdiction.
224. Indeed, as far as torture is concerned, it has effectively been
legislated as a crime under international law by the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, whether
or not committed within the context of a more generalized practice, and it
would be desirable that it be included as an independent basis of the proposed
court's jurisdiction. It is, of course, established as a crime against
humanity provided the threshold elements are present.
225. In any event, it is assumed that in situations of armed conflict, the
proposed court will be able to try individual cases of war crimes, including
torture, whether committed as a grave breach of the four Geneva Conventions of
12 August 1949 in respect of international armed conflict or as a violation of
the laws and customs of war as reflected in article 3 common to those
Conventions.
226. For the proposed court to have international credibility and legitimacy,
it will be essential for an international prosecutor to be able independently
to initiate indictments of suspected perpetrators of crimes within the court's
jurisdiction. If such indictments were left to the decision of a political
body, such as the Security Council, this could not but call into question the
impartiality of international justice. Clearly there is no reason why the
Security Council should not have a comparable power of referring situations or
cases to the prosecutor.
227. Accordingly, the Special Rapporteur believes that the creation of an
International Criminal Court with the characteristics described would be a
monumental step towards the realization of international justice, not least
because it would, in principle, permit an organ of the international community
to override de lure or de facto impunity at the national level.
228. In this connection, the Special Rapporteur is aware of suggestions
according to which nationally granted amnesties could be introduced as a bar
to the proposed courts' jurisdiction. He considers any such move subversive
not just of the project at hand, but of international legality in general.
It would gravely undermine the purpose of the proposed court, by permitting
States to legislate their nationals out of the jurisdiction of the court. It
would undermine international legality, because it is axiomatic that States
may not invoke their own law to avoid their obligations under international
law. Since international law requires States to penalize the types of crime
contemplated in the draft statute of the court in general, and torture in
particular, and to bring perpetrators to justice, the amnesties in question
are, ipso facto , violations of the concerned States' obligations to bring
violators to justice. Any such proposed move would be to turn things on their
head, allowing national law to dictate international legal obligation.
E/CN. 4/1998/38
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229. The Special Rapporteur has no illusions that the proposed court will
offer a panacea to problems of impunity at the national level. It will take
time for the institution to come into existence and be applicable to all
States. Nor can it be expected to have the resources to try all offenders.
In many cases, the court will not have the suspects in its hands. It is
therefore necessary to look to national criminal jurisdictions to play a major
role in imposing justice. However, the national jurisdictions do not need to
be territorial, that is, of the State where the crime was committed. Indeed,
it is the failure of territorial jurisdiction that is the problem. In respect
of the crimes under consideration, such as torture, universal jurisdiction is
applicable, that is, jurisdiction exercised on the basis simply of custody.
230. As regards grave breaches of the Geneva Conventions of 12 August 1949
and acts of torture committed in a State party to the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, States
are required to bring to justice any perpetrators they find within their
jurisdiction, regardless of their nationality or that of their victim(s) or of
where they committed the crime, if they do not extradite them to another
country wishing to exercise jurisdiction.
231. In respect of other pertinent crimes under international law, States are
in any event permitted to exercise such jurisdiction. The problem is that,
all too often, they have not amended their national legislation to permit
their law enforcement authorities and institutions for the administration of
justice to act accordingly. This means that the perpetrators may escape
justice completely. It is especially unfortunate when the State having
custody of the individual can neither return the person to his or her country
of origin for fear of the person's being tortured or otherwise persecuted, nor
send him or her to another country because of similar fears.
232. The Special Rapporteur, therefore, urges all States to review their
legislation with a view to ensuring that they can exercise criminal
jurisdiction over any person in their hands suspected of torture or, indeed,
of any crime falling within the notions of war crimes or crimes against
humanity as understood above.
233. He would also hope that the United Nations programme of advisory
services and technical assistance would have the capacity to provide States
with any technical assistance they would need in developing appropriate
legislative amendments to give effect to this recommendation.
234. Needless to say, neither an international criminal jurisdiction nor
universal State jurisdiction is a wholly satisfactory solution to the problem
of impunity. The Special Rapporteur can only reaffirm his view that States
should refrain from granting or acquiescing in impunity for human rights
crimes at the national level, such impunity itself constituting a violation of
international law. The recommendations concerning international and universal
jurisdiction could at least make a dent in that impunity, so that perpetrators
may feel that, whatever protection they have in the countries where they have
committed their crimes, they will have no safe haven elsewhere.
