Summary Records - CAT - Paraguay - CAT/C/SR.289 (1997)

Distr.

GENERAL

CAT/C/SR.289
26 August 1997

ENGLISH
Original: FRENCH

Summary record of the public part* of the 289th meeting : Mexico, Paraguay. 26/08/97.

CAT/C/SR.289. (Summary Record)

Convention Abbreviation: CAT

COMMITTEE AGAINST TORTURE

Eighteenth session

SUMMARY RECORD OF THE PUBLIC PART* OF THE 289th MEETING

Held at the Palais des Nations, Geneva,
on Friday, 2 May 1997, at 10 a.m.

Chairman: Mr. DIPANDA MOUELLE

CONTENTS

CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 19 OF THE CONVENTION (continued)

Second periodic report of Paraguay

Third periodic report of Mexico (continued)

FUTURE MEETINGS OF THE COMMITTEE

* The summary record of the closed part of the meeting appears as document CAT/C/SR.289/Add.1.

The meeting was called to order at 10.10 a.m.

CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 19 OF THE CONVENTION (agenda item 4) (continued)

Second periodic report of Paraguay (continued) (CAT/C/29/Add.1; HRI/CORE/1/Add.24)

1. At the invitation of the Chairman, Mr. Giménez Cabral, Mrs. Casati and Mrs. Alcaraz Cañiza (Paraguay) took places at the Committee table.

2. The CHAIRMAN welcomed the delegation and invited it to introduce Paraguay's second periodic report.

3. Mr. GIMÉNEZ CABRAL (Paraguay) said that he would base his presentation on three issues of vital importance for the enforcement of human rights in his country. First, illegal detention had unfortunately been practised systematically in Paraguay during the dictatorship, and police officers, especially in the capital, saw themselves as having power of life and death over those they viewed as enemies of the Government. During the state of siege, there had been instances of political opponents being held by the police for months without exercising a single right. It was easy to imagine how the period had shaped people's mentalities and why the police of the "previous generation" still found it difficult to accept that such practices were a thing of the past. It would therefore be dishonest to affirm that arbitrary or illegal detention no longer existed in Paraguay. Victims were still reluctant to denounce such abuses while memories of the dictatorship were so fresh in their minds. In response to complaints of illegal detention, senior police officers conducted an investigation and the culprits were immediately dismissed from the force. The police academy required police officers to attend courses and seminars on human rights organized by the Directorate-General for Human Rights within the Ministry of Justice and Labour.

4. The offence of torture was not defined as such in the existing Penal Code which dated from 1910 and had been amended in 1914. A new Penal Code would shortly enter into force: the draft had already been approved by the Senate and was currently before Parliament. It contained a definition of the offence of torture and that was a step in the right direction although torture was already prohibited in article 5 of the Constitution. Hitherto, judges hearing complaints regarding acts of torture had been able to apply the articles of the Penal Code dealing with homicide or article 341 concerning assault and battery. Acts of torture that were currently before the courts had been committed under the dictatorship. It should be noted in that connection that the law precluded the opening of an investigation in the absence of a complaint. The Government, aware of the understandable reluctance of the victims to come forward, had appointed a lawyer to take charge of such cases and file complaints on their behalf. The Executive had in that way sought to show its determination to usher in a new era of respect for human rights. As soon as cases were referred to the courts, the proceedings began and the accused parties could be tried.

5. With regard to conditions in penitentiary establishments, the Paraguayan Government was taking steps to deal with the shortage of premises and sanitary installations and to ensure that adult and minor prisoners were not housed in the same locations. Prisoners were also separated on the basis of the seriousness of the offences committed. The Ministry of Justice and Labour was responsible for the administration of penitentiary establishments in the regions, which had previously come under the authority of the regional police departments. Persons still held in police stations would shortly be transferred to the new prisons under construction in the various districts of the country. In conclusion, he said he would be pleased to reply to any questions that the members of the Committee wished to ask.

6. Mr. GONZÁLEZ POBLETE (Country Rapporteur) welcomed the efforts of the Paraguayan authorities to rebuild the country's democratic institutions after 30 years of dictatorship. When dictatorships fell, they left behind not only a heavy institutional deficit - legislation dating from the beginning of the century was a very inadequate source of protection for human rights - but also a very marked imprint on mentalities. In that regard, the process of re-educating police officers and other public officials would be slow and laborious.

7. With regard to the implementation of the Convention, it should first be noted that torture was not defined as such in the existing Penal Code and that the penalties prescribed under article 341 mentioned by Mr. Giménez Cabral were inadequate. The Committee would therefore like to know how the offence of torture would be defined in the new Penal Code following its discussion and possible amendment by Parliament. It could already be noted that the definition contained in article 297 bis of the draft under consideration (para. 26 of the report) was not in conformity with the Convention definition. On the other hand, the imprescriptibility of acts of torture (art. 5 of the Constitution) was a commendable feature and a rule duly applied in practice, as could be gathered from paragraph 10 of the report which stated that in two cases of torture, which qualified in principle for statutory limitation, the Supreme Court had handed down judgements declaring acts of torture to be imprescriptible, thereby allowing the judges and courts to act subsequently in accordance with the same criteria. The provisions regarding the possible proclamation of a state of emergency (paras. 13-24 of the report) seemed to comply with the obligations entered into by States parties under article 2, paragraph 2, of the Convention.

8. The Committee was unable to form a sufficiently clear idea of the implementation of article 3 of the Convention from paragraph 25 of the report.

9. Paragraph 28 stated that the courts of first instance had handed down final sentences against public officials of the pre-1989 regime in a number of cases. Those cases had, inter alia, involved acts of torture, which could not, however, be punished as such owing to the lack of a definition as already mentioned. But article 4 of the Convention imposed an obligation on the State party to ensure that all acts of torture were offences under its criminal law. It should be noted in that connection that Paraguay's initial report (CAT/C/12/Add.3, para. 68) had mentioned a draft article 215 of the Penal Code containing most of the constituents of the offence of torture and corresponding more closely to the definition of torture in article 1 of the Convention than article 277 bis of the draft before Parliament. He inquired about the reasons for the retrogression discernible in the legislative content of the articles in question. It would perhaps be wise to draft a short simple law on the prevention and punishment of torture which would correspond fully to the specific provisions of the Convention and could be adopted rapidly.

10. The legislation currently in force did not give effect to articles 5, 6 or 7 of the Convention. Although article 145 of the Constitution admitted a supranational legal order guaranteeing the realization of human rights (para. 33 of the report), which meant that international treaties took precedence over national legislation, there was still a risk that a given court might not share that interpretation of the law and might resort to direct implementation of the Convention.

11. With regard to the application of article 8 of the Convention, the current report was no more detailed than the initial one despite the fact that the Committee had requested details on the specific procedures for extradition in order to ensure that they conformed in practice to the provisions of the Convention.

12. The "Archives of Terror" documentation centre mentioned in paragraphs 37-40 of the report played a very useful role, including that of facilitating research by nationals of other countries since the police of all the Latin American dictatorships during the period covered by those archives had cooperated closely with one another and had maintained a coordination centre at Asunción. The documentation centre made all kinds of useful information on that period available to anyone wishing to consult it, not only the public at large but also, for example, the courts; however, with regard to judicial cooperation, there was also a need for information on current legislation and practice. In particular, he asked whether judicial cooperation was based on treaties with other States or on the principle of reciprocity.

13. With regard to the teaching and promotion of human rights, many measures had been taken in cooperation with the Centre for Human Rights and the Inter-American Institute for Human Rights, and a national human rights plan had been prepared. In that regard, he stressed the fact that a country such as Paraguay suffered from a serious cultural liability: whole generations had been born under the dictatorship, and the soldiers and police officers currently promoted had been trained under that system. In those circumstances, the best means of prevention was to work towards a culture of respect for human rights since such a culture, backed up by strengthened institutions, was the best guarantee for the future.

14. With regard to the implementation of article 11 of the Convention, various measures described in paragraphs 49-52 of the report were extremely useful - the National Police Organization Act, the creation of a Human Rights Protection Office within the Ministry of the Interior, the draft reform of the Code of Criminal Procedure, judges' visits to prisons, and so on. However, there was no mention of the procedures and legislation concerning detention and the systematic monitoring of police practices, which were crucial measures for the protection of individuals.

15. Paragraph 53 of the report stated that the Constitution explicitly prohibited physical harassment or punishment. However, it was not enough for that principle to be set forth in the Constitution; the law must also establish provisions for its practical application. Furthermore, paragraphs 54-58 described established national and local structures aimed at making it possible for citizens to lodge complaints of torture or ill-treatment, but nothing was said concerning action taken on those complaints, nor was it stated whether they were rapidly and effectively investigated as called for by the Convention; the Committee had received information from reliable non-governmental organizations (NGOs) which suggested that that was not the case. For example, Amnesty International and Service, Justice and Peace (Servicio, Paz y Justicia - SERPAJ) had stated that in 1996, over 100 complaints of ill-treatment and torture had not been dealt with in accordance with articles 12 and 13 of the Convention. Those organizations had also mentioned about 15 cases of ill-treatment in the army. It would therefore be desirable for the Committee to receive information concerning the number of complaints of torture or ill-treatment lodged since submission of the initial report; the first part of paragraph 57 of the report was unclear, and he requested information on its exact meaning.

16. The report stated that victims of human rights violations under the dictatorship could claim compensation; was that also the case with violations committed after the end of the dictatorship? Article 106 of the Constitution specifically established the State's subsidiary responsibility for acts of torture; consequently, in order to claim State compensation, the victim must first prove that the person responsible for the act in question was insolvent, a situation which did not correspond to the provisions of article 14 of the Convention.

17. He would be the first to agree that the transition to democracy was difficult and that it was not easy to rid oneself of the consequences of a dictatorship and the ubiquitous forms of petty authority which it left behind. Impatience served no purpose and might hinder the process. However, it was essential to persevere and to work unceasingly to re-establish conditions for full respect of human rights. The new democracy might collapse if it disappointed expectations and allowed the continued existence of sources of instability and frustration. The desire to correct the errors of the past existed in Paraguay, but the determination to act with greater speed was lacking. The Executive was doubtless not the only party responsible for that slowness: parliamentarians, many of whom were certainly victims of the former system, must devote themselves to ensuring legal protection of human rights in the country.

18. Mr. BURNS (Alternate Country Rapporteur) said that although the process begun in Paraguay seemed somewhat slow, there had been clear and visible progress since submission of the initial report. In particular, the Paraguayan delegation had stated orally that a reform of the prison infrastructure was under way; it was true that the prisons were still overcrowded, but much had already been done to improve the situation in correctional establishments for minors which had caused the Committee so much concern during its consideration of the initial report.

19. It would be useful to know what had been done to increase sensitivity to human rights issues on the part of doctors. Had anything been done to make them aware of their role in a democratic society and to teach them that they must not, under any circumstances, become involved in the practice of torture and that they had a role to play in the identification and rehabilitation of victims? He also wondered how human rights training was provided at the police academy. What proportion of the curriculum was devoted to such matters, what major topics were dealt with in that regard, at what stage of training did recruits receive that instruction and how many recruits per year studied at the police academy?

20. It would be useful to know the composition of the Ministry of the Interior's new Human Rights Protection Office, mentioned in paragraph 51 of the report: were its officials police officers with special training in that regard or, for example, lawyers seconded from the Ministry of Justice? He also asked the meaning of paragraph 57 of the report, which was ambiguous: did it mean that there had been cases of torture but that, in view of past experience, the victims were too frightened to complain or that they thought a complaint would, in any case, be futile?

21. It would be useful to know whether the provisions described in paragraph 59 of the report were included in the new Criminal Code. Article 2 (e), mentioned in that paragraph, concerned compensation of persons who had been unlawfully detained for over three months, which led him to wonder what the situation of victims of unlawful detention for less than three months would be. He also welcomed the statement in paragraph 63 of the report that in Paraguay, a statement lacked evidential value unless it was made before the appropriate court.

22. The Paraguayan delegation had already answered the questions he would have asked concerning paragraph 65 of the report. He welcomed the progress already made and hoped that prison conditions would continue to improve within the limits of available resources. Although his next questions might have been asked during consideration of the initial report of Paraguay, it would be useful for the delegation to explain again, at the current stage, what the total length of pre-trial detention in Paraguay was and whether a prisoner could at any time be held in solitary confinement, either before or after sentencing; could the prison administration place a prisoner in solitary confinement?

23. As the Special Rapporteur had mentioned, Amnesty International and other NGOs had noted that conscientious objectors were subjected to harassment by the military authorities. Since conscientious objection was a constitutional right in Paraguay, he inquired what steps the authorities were taking to remedy that situation and whether the Paraguayan army was made up of conscripts or of career soldiers.

24. It would be useful to have reliable statistics on prosecutions of police officers or prison guards for ill-treatment and torture during, for example, the past two years; however, it would first be necessary to explain how such information was gathered in Paraguay since there was no definition of torture as a specific criminal offence. He also wondered how, in practice, complaints of ill-treatment were lodged: to whom did victims complain, who carried out an investigation and who finally determined whether the complaint was founded? Amnesty International had, in fact, stated in its 1996 report that there had been cases of torture and ill-treatment in Paraguay but that those responsible had not been brought to trial. Lastly, the Committee hoped that Paraguay would make the declaration under articles 20 and 22 of the Convention.

25. Mr. SORENSEN said he associated himself with the questions that had already been asked and merely wished to raise two points. Mr. Burns had already mentioned the training of doctors; it would also be useful to know whether any doctors had been penalized for having participated in acts of torture, the number of such convictions and the sentences handed down. He also wondered what was the current employment situation of police officers and doctors formerly associated with acts of torture.

26. The United Nations Voluntary Fund for Victims of Torture appreciated all contributions, however small. A democratic country such as Paraguay, where torture had been practised under a previous regime, should make at least a symbolic contribution in order to show its respect for the victims.

27. Mr. YAKOVLEV warmly praised the progress towards democracy, after years of dictatorship, in Paraguay. The changes in the legal structure were exemplary but insufficient since concrete application of the law had not yet been ensured. With regard to the prevention of torture, the most critical time was the period immediately following arrest. Article 344 of the Paraguayan Code of Criminal Procedure stated that anyone under arrest must be brought before a judge within 24 hours: that was an excellent measure, but was it really respected by the police and how was its implementation monitored?

28. Was the problem of harassment of conscripts, which existed in many countries, recognized in Paraguay and, if so, what measures were envisaged in order to remedy the problem? He also asked whether accused and convicted persons were separated in prisons by law and in practice. Lastly, he wondered under what conditions peasants were expelled in some parts of the country since various sources had reported arrests accompanied by ill-treatment; while it was not for the Committee to express an opinion on those expulsions, they must be carried out with respect for the rights of the persons concerned.

29. Mr. PIKIS requested further information on the status, powers and activities of the Directorate-General for Human Rights mentioned in paragraph 143 of the core document (HRI/CORE/1/Add.24). He also inquired about the habeas corpus procedure mentioned in paragraph 146 of the same document: what court was competent to issue a writ of habeas corpus? Lastly, with regard to the relative hierarchy of legislation, he asked for confirmation that, once ratified, treaties took precedence over domestic law, which meant that, even during a state of emergency, the rights guaranteed by the Convention could not be suspended.

30. Ms. ILIOPOULOS-STRANGAS requested information on the Supreme Court and, in particular, the manner in which its judges were appointed. She noted that international treaty law took precedence over domestic law in Paraguay and asked whether the Supreme Court was competent to monitor the constitutionality of legislation and its conformity with international law and whether cases could be referred to it directly by individuals. With regard to judges in general, she had read in the core document (HRI/CORE/1/Add.24) that judges were appointed from a list of three candidates and requested information on the qualifications required of judges and whether they had life tenure.

31. The CHAIRMAN invited the Paraguayan delegation to reply at the following meeting.

32. The delegation of Paraguay withdrew.

The public part of the meeting was suspended at 11.40 a.m.
and resumed at 12.05 p.m.

Third periodic report of Mexico (CAT/C/34/Add.2) (continued)

Conclusions and recommendations

33. At the invitation of the Chairman, the members of the delegation of Mexico resumed their places at the Committee table.

34. Mr. GONZALEZ POBLETE (Country Rapporteur) read out the conclusions and recommendations of the Committee:

"The Committee considered the third periodic report of Mexico (CAT/C/34/Add.2) at its 285th and 286th meetings on 30 April 1997 (see CAT/C/SR.285 and 286/Add.1) and formulated the following conclusions and recommendations:

A. Introduction

1. Mexico ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 23 January 1986 and, since the entry into force of the Convention, has submitted the initial and periodic reports called for under article 19 on time. The Committee appreciates the timeliness with which the Mexican Government has fulfilled this obligation, thereby helping it carry out its functions under the Convention.

2. The third periodic report of Mexico, which was considered by the Committee at its eighteenth session, complies with the guidelines on the form and content of periodic reports which the Committee adopted in 1991.

3. Several months before its periodic report, Mexico also submitted the supplement to the second periodic report which the Committee had requested during its consideration of the latter in November 1992. However, the Committee did not consider this additional report, both because of the time of submission and because the information it contained was included in the third periodic report.

B. Positive aspects

1. The Committee appreciates the State party's efforts to improve the legal status of the protection of torture victims and, in particular, the new legislative provisions on restitution, compensation and rehabilitation for victims of human rights violations, promulgated in January 1994, and the granting of compulsory effect to the recommendations of the National Human Rights Commission, which require the authorities to compensate torture victims for the harm they have suffered.

2. The Committee recognizes the importance of the set of projects and activities for human rights education and training, which focus on a wide range of public activities during which situations of human rights violations may occur. The report shows that considerable efforts have been made to strengthen a culture of respect for human rights on the part of public servants and of society in general.

Factors and difficulties impeding the application of the provisions of the Convention

D. Subjects of concern

1. The Committee has received abundant reliable information stating that, despite the legal and administrative measures the Government has taken to eradicate torture during the period covered by the report which has been considered, torture continues to be systematically practised in Mexico, particularly by the federal and local Judicial Police and, recently, by members of the Armed Forces on the pretext of combating subversives. The Committee notes with concern the wide gap between the extensive legal and administrative framework established in order to put an end to torture and cruel, inhuman and degrading treatment and the actual situation demonstrated by this information.

inter alia

3. Even the State party's report includes statistics which clearly demonstrate the impunity of torturers; by contrast with the large number of complaints of torture received by the National Human Rights Commission, which the report also mentions, only two convictions based on the Federal Act to Prevent and Punish Torture and five for homicide resulting from torture were handed down between June 1990 and May 1996.

4. In practice, the failure by the authorities responsible for criminal investigation to investigate reports of torture promptly and impartially, as stipulated in articles 12 and 13 of the Convention, results in the denial of the right of victims to take legal action to claim compensation for the violation of their rights.

E. Recommendations

1. In order to discourage the practice of torture, the Committee considers it necessary to implement effective procedures for monitoring compliance with the duties and prohibitions of public officials and bodies responsible for the administration of justice and law enforcement, particularly the Office of the Attorney-General and its subsidiary departments and the judiciary, in order to ensure the full implementation of the many existing judicial remedies for the elimination of torture and the criminal and administrative punishment of the persons responsible.

2. The Committee recommends that human rights commissions should be given the necessary jurisdiction to prosecute cases of serious human rights violations, including complaints of torture.

3. The Committee recommends that training and dissemination programmes intended particularly for law enforcement officials and health professionals should be strengthened and should include issues relating to the prohibition of torture.

4. The Committee recommends that procedures to inform detainees of their rights should be developed. Detainees should be immediately and directly informed of their rights by public officials at the time of arrest and those rights should be posted in all detention centres, prosecutors' offices and courthouses. This information should include a clear, simple statement of the provisions of the relevant legislation, particularly articles 16, 19 and 20 of the Constitution and the relevant provisions of the Federal Act to Prevent and Punish Torture.

5. The Committee recommends that the State party should consider making the declaration under article 22 of the Convention.

6. The Committee requests the State party to provide written answers as soon as possible to the unanswered questions asked by its members.

7. The Committee suggests that the State party should include relevant information on the Federal District and the States in its next periodic report. In particular, the Committee would like to receive information of this kind on the following matters:

(a) Statistics on complaints of human rights violations in general and, in particular, complaints of torture brought before the human rights commissions and on the recommendations of those commissions;

(b) Preliminary investigations of complaints of torture, cases where criminal action has been taken and trials which have resulted in final sentences, whether acquittals or convictions, and, in the latter case, the penalties imposed;

(c) Cases in which the administrative responsibility of public officials accused of torture has been established and the penalties imposed."

35. Mr. JOUBLANC (Mexico) said he had taken careful note of the conclusions and recommendations of the Committee and would transmit them to his Government without delay. He had already communicated to the appropriate authorities those of the Committee's questions which his delegation had been unable to answer. He again asserted his country's firm commitment to continuing its efforts to attain the goals of the Convention against Torture and thanked the Committee for its suggestions and its interests in Mexico.

36. The CHAIRMAN thanked the delegation of Mexico for its candour and cooperation.

37. The delegation of Mexico withdrew.

The public part of the meeting was suspended at 12.25 p.m.
and resumed at 12.30 p.m.

FUTURE MEETINGS OF THE COMMITTEE (agenda item 7)

38. Mr. BRUNI (Secretary of the Committee) announced the provisional dates of the Committee against Torture's 1998 and 1999 sessions. The twentieth session would be held from 4 to 15 May 1998, the twenty-first from 9 to 20 November 1998, the twenty-second from 26 April to 7 May 1999 and the twenty-third from 8 to 19 November 1999.

39. Ms. ILIOPOULOS-STRANGAS pointed out that the Committee had asked the United Nations General Assembly for a third annual session and inquired whether the General Assembly had responded to that request.

40. Mr. BRUNI (Secretary of the Committee) replied that the General Assembly had considered the annual report of the Committee, which included the request, and had replied in the negative. However, the Committee could repeat its request in its next annual report to the General Assembly.

41. Mr. CAMARA said he did not think the Committee should repeat its request and that it would be better to await a more favourable climate. When the time came, the General Assembly itself might offer the Committee additional working days.

42. Mr. SORENSEN disagreed; the Committee really needed at least one additional week of work and should make that fact known.

43. Mr. GONZALEZ POBLETE said he agreed with Mr. Sorensen and emphasized the need for the Committee to take an immediate position on the issue; it was possible that the new High Commissioner for Human Rights would be appointed before the next session and that the Committee would then be able to make such a request to the High Commissioner directly.

44. Ms. ILIOPOULOS-STRANGAS, supported by Mr. YAKOVLEV, said she thought the Committee should not confine itself to its usual vehicle for communication with the General Assembly - the annual report - but should send a specific appeal, making a number of arguments: the Committee had only 10 members and, at present, there was already over a year and a half delay in consideration of the reports of States parties; moreover, communications received under article 22 of the Convention were increasingly numerous, and there were increasingly long delays in their consideration. Under those circumstances, it was difficult for the Committee to carry out the mandate entrusted to it under the Convention.

45. Mr. BRUNI (Secretary of the Committee) pointed out that, within the framework of the general restructuring of the United Nations, the General Assembly examined any request with financial implications solely from a financial point of view without even considering the substance of the issue. It was the Fifth Committee (Committee on Administrative and Budgetary Matters) which took the final decision, and its only concerns were of a financial nature. However, if the Third Committee (Committee on Social, Humanitarian and Cultural Matters) adopted a resolution in favour of the Committee's request, such a resolution might influence the decisions of the Fifth Committee.

46. Mr. BURNS said he did not think the Committee should take financial considerations into account. The importance of its task and the volume of its work amply justified its request for additional working days. He pointed out that for lack of time, the Committee was sometimes unable to carry out its functions as it should do, even to the point of offhandedness in its treatment of the delegations of the States whose reports it was considering.

47. After an exchange of views in which Ms. ILIOPOULOS-STRANGAS, Mr. SORENSEN, Mr. GONZALEZ POBLETE, Mr. ZUPAN_I_, Mr. CAMARA and Mr. YAKOVLEV took part, the CHAIRMAN suggested that Mr. Burns and Mr. Zupan_i_ should draft a substantiated request that the Committee against Torture should be permitted additional working days.

48. It was so decided.

The meeting rose at 1.05 p.m.