COMMITTEE AGAINST TORTURE CONSIDERS FOLLOW-UP TO CONCLUDING OBSERVATIONS AND INDIVIDUAL COMMUNICATIONS

The Committee against Torture this morning considered the issue of follow-up to concluding observations and individual communications, hearing oral presentations by Committee members Felice Gaer, Rapporteur on the follow-up to concluding observations, and Fernando Mariño Menendez, Rapporteur on the follow-up to individual communications.

Ms. Gaer, presenting her report on the follow-up to reporting observations (article 19 of the Convention), said that since the Committee had begun the follow-up procedure in 2003, 109 countries had been reviewed (92 individual countries, 17 reviewed twice). The five most commonly asked questions during the review process, in order of occurrence, were: prompt, impartial and effective investigation; prosecution and sanction; fundamental legal safeguards; the right to complain and have cases examined; and training and awareness-raising.

Ms. Gaer suggested that the Committee consider limiting follow-up to the Convention to the top three issues that had emerged since 2003 to provide more focus for States parties and highlight the Committee’s emphasis on urgent matters. The Rapporteur also recommended that the Committee replace paragraphs with issues which would require more discipline and vigour in the identification of items for follow-up.

In the ensuing discussion, Committee members underlined the importance of monitoring and asked if it went hand in hand with investigations and legal safeguards. Others said it was important to consider the methodology of questioning that the Committee employed which tended to be static rather than dynamic and suggested the use of more statistics. Another Committee Expert noted that it was important to monitor the relevance of the top three issues to States parties and recommended stronger coordination with the Sub-Committee on Optional Protocol that might contribute information from the field on the issues covered by the Committee.

Presenting the report on the follow-up to individual communications (article 22 of the Convention), Committee Expert Fernando Mariño Menendez, the Rapporteur on this topic, presented a mid-term review on individual communications. The review noted the need for cases to be reopened for redress because of the passage of time or the legal impossibility due to domestic law which made it difficult to carry out cases with statue of limitations.

Mr. Mariño Menendez said a case against Senegal indicated a violation of article 5 of the Convention. The Government of Senegal had decided that Hissene Habre, the former President of Chad who had committed torture abroad, would not be tried in Senegal. The State of Chad stated that the individual should be extradited to Belgium for trial. In the ensuing discussion, Committee Experts said that the Belgium solution was reasonable as it would support the fight against impunity while others noted that the Convention required that the individual should either be extradited or tried. It was decided that the Committee should remind Senegal that it was continuing to fail to comply with its obligation under the Convention to either try the individual or extradite him to another country for a competent trial so that the victims could receive redress.

Other individual communications reviewed by the Committee included cases in Morocco, Serbia, Sweden, Switzerland and Tunisia.

In concluding remarks, Committee Chairperson Xuexian Wang thanked the Rapporteurs for their presentations.

When the Committee next reconvenes in public, on Tuesday, 22 November at 4 p.m., it will meet with stakeholders to discuss article 14.

Discussion

FELICE GAER, Rapporteur for the follow-up to concluding observations, said that since the Committee had begun the follow-up procedure in 2003, 109 countries had been reviewed (92 individual countries, with 17 reviewed twice). The five most commonly asked questions during the review process, in order of occurrence, were: prompt, impartial and effective investigation; prosecution and sanction; fundamental legal safeguards; the right to complain and have cases examined; and training and awareness-raising.

Ms. Gaer provided an analysis on how the follow-up procedure was affected by the List of Issues Prior to Reporting. Approximately 75 per cent of States had provided answers within the first year. With the establishment of the List of Issues Prior to Reporting, the Secretariat and Members of the Committee had prepared a list of questions on all issues. Ms. Gaer asked if the Secretariat could clarify the timing of when the List of Issues Prior to Reporting was provided. The Secretariat responded that the List was sent to the State Party at a maximum of two weeks after the session and the State Party was given approximately one year and a half to reply, 18 months before the report of the State Party was due. The Secretariat emphasized that most States parties replied much later, at least two years. Ms. Gaer noted a concern that the follow-up procedure might be too expansive and broad because it often ran into the next review process.

The drafting style and paragraphs of the Committee addressed multiple matters and linkages in items, however when it came to follow-up, the Committee had expanded on what it requested the States to do. Ms. Gaer said that a review of working methods should consider a focus on limiting the number of topics to four or six, rather than limiting paragraphs, as was the current method. The Committee should replace topics prepared by the country Rapporteur rather than simply adding on the items which would require more discipline and vigour in the identification of items for follow-up.

Globally, in every region the two most important issues were the need for prompt, impartial and effective investigation and the need to prosecute and sanction. Ms. Gaer suggested that the Committee might consider whether or not there should be a limit on follow-up to the Convention to the top three issues which would provide more focus for States parties and highlight the Committee’s emphasis on urgent matters. An analysis by region demonstrated some regional differences among issues three and four. For example, in West Europe, one of the top five issues was what had been done regarding migrants and return of asylum seekers, which globally had not been asked as much. In the East European region, the fifth most important topic was not training but protection of minors. In Africa, the fifth most important topic focused on redress items while in the Asian region the fourth topic was the review of detention and punishment practices. In the Latin America region, the third most common issue identified for follow-up was gender based violence or trafficking.

NORA SVEAASS, Committee Expert, said that monitoring went hand in hand with investigations and legal safeguards and asked if monitoring could be included in that topic. The latest information on the ongoing terrible situation for children in the world justified the protection of children as an issue to be included by the Committee.

ESSADIA BELMIR, Committee Expert, said that it was important to consider the methodology of questioning that the Committee employed which tended to be static rather than dynamic and suggested the use of more statistics.

ALESSIO BRUNI, Committee Expert, agreed with the Rapporteur’s proposal to limit issues to four or five as that would simplify the procedure in adopting concluding observations.

FERNANDO MARINO MENENDEZ, Committee Expert, said that once the priority areas of concern were identified then the Committee could keep them for some time as long as conditions would not invalidate the issues. It was important to monitor the relevance of the issues to States parties and agreed with choosing subjects rather than paragraphs. Mr. Mariño Menendez recommended stronger coordination with the Sub-Committee on the Prevention of Torture that might bring information from the field on the issues covered by the Committee.

In concluding remarks, Ms. Gaer said that the top five issues had clearly stood out among all the others. Of the total number of countries examined, 109, there were 86 concluding follow-up requests for investigation and 74 for prosecution and sanctions. Ms. Gaer said the objective of replacing paragraphs with issues was to insure that the Committee’s follow-up work would be urgent, protective and doable.

XUEXIAN WANG, Committee Expert, said that the Committee would benefit from having fewer topics in the follow-up process if these topics were more focused.

FERNANDO MARINO MENEDEZ, Rapporteur on the follow-up to individual communications, presented a mid-term review on individual communications. The review noted the need for cases to be reopened for redress because of the passage of time or the legal impossibility due to domestic law which made it difficult to carry out cases with statue of limitations. It was important for the Committee to be clear on which cases it should be pushing on and where it could achieve real results. The Committee would like to see a more detailed analysis of the implementation of provisional measures, how wide spread the practice was and how the States Parties handled the cases.

The first case involved Morocco, which had been debated in the last session. There was some confusion about this case among Moroccan officials, the Chairperson of the Committee had to apply the principle of non-refoulement and if the individual would have been returned to Algeria this would be a violation of the Convention. According to relatives, the individual had been transferred to another prison and the Rapporteur suggested that a follow-up was required to ensure that the individual would not be deported to Algeria as there was reasonable proof that admission of guilt was obtained under torture in Algeria. It was decided that the Committee would request a follow-up for more information on the status of this individual in Morocco.

A case against Senegal indicated a violation of article 5 of the Convention. The Government of Senegal had decided that Hissene Habre, the former President of Chad who had committed torture abroad, would not be tried in Senegal. The State of Chad stated that the individual should be extradited to Belgium for trial. In the ensuing discussion, Committee Experts said that the Belgium solution was reasonable as it would support the fight against impunity while others noted that the Convention required that the individual should either be extradited or tried. It was decided that the Committee should remind Senegal that it was continuing to fail to comply with its obligation under the Convention to either try the individual or extradite him to another country for a competent trial so that the victims could receive redress.

The next communication concerned Serbia which included four cases where the State had violated articles 12, 13, and 14 of the Convention. On principle, the Rapporteur said that the Committee should say to the State party that it must continue to investigate these cases as there was no statue of limitations on torture and there was always a requirement to provide reparations. It was agreed that the Committee should issue a follow-up with an ongoing dialogue with the State party on all four cases.

Another communication concerned Sweden, where the State party was not able to provide a residence permit to an individual who had been expelled from Sweden because he was classified as a security case. The individual was no longer in prison in Egypt, where he had been expelled. The State party, Sweden, has closed the case. The Committee agreed with the closure of this case. Three additional cases were considered from Sweden, all considering violations of article 3, one that required further follow-up, one that was closed, and one that required on-going follow-up.

The communication on Switzerland included a violation of article 3 of the Convention. The Committee closed this case.

A communication on Tunisia was then considered. One case involved a violation of articles 12 and 13, wherein the Committee recommended that the State party no longer put obstacles in front of the investigation because the case had now been open for seven years. The Committee agreed to support the request by the family that an independent doctor be a part of the investigation and encouraged Tunisia to conclude the investigation as soon as possible.

The next communication also concerned Tunisia with a violation of articles 1, 12, 13 and 14. The Committee agreed to ask the State party to resolve this pending case as soon as possible. The final communication on Tunisia involved violations of articles 1, 12, 13 and 14. The judge in Tunisia had decided not to reopen the case because there was a lack of evidence. The Committee however, has been unable to communicate with the individual in the case and decided to request information from Tunisia on what course the case was currently taking.


For use of the information media; not an official record

CAT11/045E