Committee against Torture
6 November 2012
The Committee against Torture this morning began its consideration of the third periodic report submitted by Senegal on how it implements the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Introducing the report, Fodé Seck, the Permanent Representative of Senegal to the United Nations Office at Geneva, said Senegal had incorporated the Convention against Torture into its Criminal Code and had strengthened the promotion and protection of human rights in the country by adopting new provisions in the Criminal Code and the Criminal Procedural Code. There had also been several other important developments, including the establishment of the National Observer of Places of Deprivation of Liberty, the abolition of the death penalty and the ratification of the Convention on the Rights of Persons with Disabilities and its Optional Protocol, as well as the ratification of the Convention for the Protection of All Persons from Enforced Disappearance.
Fernando Marino Menendez, the Rapporteur for the report of Senegal, said the definition of torture as contained in the 1996 Criminal Code could be fine-tuned on the basis of the Convention; the current definition left room for misunderstanding. Mr. Marino Menendez wondered whether people had access to legal counsel and medical services from the start of their custody, during the time of greatest vulnerability. He expressed concern at the practice of “retour de parquet”, that is, prolonged periods of deprivation of liberty due to the Public Prosecutor not being able to find the time to consider cases.
Claudio Grossman, the Co-Rapporteur for the report of Senegal, enquired whether anyone had been prosecuted for practicing female genital mutilation or instigating to this practice and whether the new law on early marriage had had an impact on society so far. Mr. Grossman was concerned that the Criminal Code did not exclude confessions obtained under torture, wondering how it had been possible that such a provision be adopted and not be scrapped as part of the wide-ranging revision of the Constitution.
Committee Experts congratulated Senegal for establishing a National Observer of Places of Deprivation of Liberty and wished to know how many observers would be working for this body. They also asked several in-depth questions about the legal measures protecting the rights of people with disabilities and the evaluation of the training on human rights and torture.
The delegation of Senegal consisted of representatives from the Ministry of Foreign Affairs, the Ministry of Justice, the Ministry of Armed Forces, the Ministry of Women, Children and Feminine Entrepreneurship, the Police and the Permanent Mission of Senegal to the United Nations Office at Geneva.
The next public meeting of the Committee will be at 3 p.m. this afternoon when it will hear the replies of Qatar, which presented its second periodic report to the Committee on Monday, 5 November 2012. The Committee will hear the replies of Senegal at 3 p.m. on Wednesday, 7 November.
Report of Senegal
The third periodic report of Senegal can be read via the following link: CAT/C/SEN/3.
Presentation of the report of Senegal
FODE SECK, the Permanent Representative of Senegal to the United Nations Office at Geneva, introducing the report, said Senegal had incorporated the Convention against Torture into its Criminal Code through legislation adopted in 1996. The relevant article was inspired by the first article of the Convention and based on a broad understanding of torture. Beyond the ratification of the Convention in 1986, Senegal had strengthened the promotion and protection of human rights by adopting new provisions, both in the Criminal Code and the Criminal Procedural Code, concerning the crimes addressed by the Rome Statute. Adding to this were changes in how custody was being managed so as to better protect the rights of detained persons.
With the election of Macky Sall as President on 25 March this year, Senegal had entered its second political transition in a decade and its third peaceful handover of power. The new authorities had not refrained from investigating acts of violence in Senegal even though these were only sporadic. These investigations were being processed by judicial authorities in an impartial manner, in conformity with the Rome Statute of the International Criminal Court, which Senegal had ratified as the first State.
Mr. Seck reaffirmed the commitment of Senegal to bring to justice the perpetrators of international crimes committed in Chad between 1982 and 1990. In this spirit Senegal had adopted, in accordance with the Convention, the legislative measures to establish its competence in this regard. To this end, Senegal had signed a treaty with the African Union to establish special chambers embedded in the Senegalese judicial system. These chambers would soon take up their work to judge persons who had been involved in relevant international crimes committed in Chad. The budget for this process had been approved by the African Union, Senegal and the international donor community alike.
Outlining other important developments, Mr. Seck pointed to the establishment of the National Observer of Places of Deprivation of Liberty. This had been undertaken in applying the Optional Protocol to the Convention against Torture, which Senegal had ratified in 2006. The National Observer was an independent administrative authority. Among other things, its aim was to visit all places of deprivation of liberty throughout the country, regardless of whether the detention was being carried out by public authorities, on their behalf or with their acquiescence. The National Observer was also empowered to make recommendations to public authorities and propose legal amendments to the Government. The National Observer had already been appointed and would receive a mission of the Subcommittee on the Prevention of Torture during their upcoming visit in December.
Efforts to tackle overcrowding in places of detention were ongoing, Mr. Seck went on to say. In addition, alternative measures were being considered, including probation, conditional liberty and presidential pardon. The repression of torture at the judicial level was very effective and victims of torture could turn to courts for repeals. It should be noted that detention and custody were regulated in detail and placed under the supervision of either the prosecutor or a magistrate. People found to be guilty of torture were requested to provide redress and the State could also be held responsible for failing to provide public services.
Other important developments included the abolition of the death penalty, the ratification of the Convention on the Rights of Persons with Disabilities and its Optional Protocol, the ratification of the Convention for the Protection of All Persons from Enforced Disappearance, as well as setting up the National Human Rights Observatory, said Mr. Seck.
Questions from Rapporteurs on Senegal
FERNANDO MARINO MENENDEZ, the Rapporteur for the report of Senegal, took note of the third periodic report of Senegal with a great deal of satisfaction. This report, which covered the 16-year period from 1996 to 2012, had however been submitted with significant delay, and the State party was encouraged to avoid such backlogs in the future.
The definition of torture as contained in the 1996 Criminal Code could be fine-tuned on the basis of the Convention, said Mr. Marino Menendez. The current definition left room for misunderstanding and very much depended on how the courts were interpreting the wording. Would Senegal consider using the definition of the Convention?
State parties had an obligation to prevent torture, the Rapporteur went on to say. This included ensuring that persons had legal counsel and access to medical services right from the start of their custody. That was the greatest time of vulnerability: when the questioning was taking place there might be attempts to obtain confessions under torture. It would seem that the 1999 law was still in place and it was unclear whether its provisions were commensurate with the standards of the Committee. It seemed that the Office of the Public Prosecutor, or his local office, should be informed immediately of custody. But were legal counsel and medical services provided immediately or only after 48 hours?
The Rapporteur noted that interviews could take place between the legal counsel and the accused – but could lawyers also be present during questioning? It would furthermore make sense to video record the questioning. While expensive, this could help prevent torture.
Another issue coming to mind was that of medical detention. The Public Prosecutor could order that a doctor or medical expert carry out an investigation at any place of detention. But it would seem that victims must pay the medical examination themselves if they requested these services. Was this indeed the case?
Mr. Marino Menendez expressed concern at the practice referred to as “retour de parquet”, that is, prolonged deprivation of liberty due to the Public Prosecutor not being able to find the time to consider cases. Senegal said it intended to scrap this practice but this meant that for the time being retour de parquet was still being used. Could the delegation indicate when Senegal would do away with this practice?
The Rapporteur asked for information on judicial chambers, where detainees could have recourse to when claiming that Public Prosecutors had not appropriately dealt with their cases. Were such chambers up and running and had they received any cases so far, he wondered.
Other questions asked by the Rapporteur included, inter alia, on what grounds periods of pre-trial detention could be extended; whether Senegalese children were being registered at birth and, if so, whether the State party ensured that this process was properly overseen; and what measures authorities had taken to prevent the trafficking of Senegalese nationals, particularly in Europe but also in other African countries.
CLAUDIO GROSSMAN, the Co-Rapporteur for the report of Senegal, wondered whether anyone had been prosecuted for practicing female genital mutilation or instigating to this practice. There was a comprehensive policy on this but had there been any cases? Apparently statistics on violence against women did not exist – did the State party intend to gather such information, the Expert asked. Statistics were very important, not only for the Committee but also for Senegal, to assess what was working and what was not.
As far as early marriage was concerned, Mr. Grossman wondered whether the new law had had an impact on society so far. What was the trend in Senegal today, were there any registries, and had there been sanctions and punishments handed down for people mediating or engaging in early marriages? Could the delegation offer any statistics and had any budgets been allocated for investigating this terrible practice?
Statistics were also lacking regarding human trafficking and this for the whole 16-year period covered by the report, Mr. Grossman regretted. He had read about plans which were being rolled out, notably for capacity building of public officials and civil servants. But were civil society organizations and academic institutions involved in such efforts, the Co-Rapporteur wondered.
He pointed out that amnesty in the context of international crimes was a direct crime, asking, on this basis, whether Senegal intended to modify the necessary legislation to meet international requirements? The Committee had also asked questions about compensation and reparation – had there been any such cases and if so, could the delegation cite specific instances?
In his understanding, the Criminal Code did not exclude confessions obtained under torture, leaving it to the discretion of judges to allow such evidence or not. How had such a provision been adopted and why had it not been scrapped as part of the wide-ranging revision of the Constitution? Mr. Grossman recommended that the State party think of spelling out in black and white that torture was never allowed, saying Senegal could literally use the wording of the Convention.
Some children who were being taught in Koran schools were forced to work, which was contrary to the rights of the child. How many prosecutions had there been and how many people had been found guilty? It was important that Senegal get to grips with this phenomenon and make it clear that this was unacceptable.
Questions by Committee Members
An Expert wondered what happened when a subordinate refused an order which involved torture, asking the delegation to provide examples. He congratulated Senegal for having established a mechanism for the prevention of torture but wondered how many observers would be working for the National Observer of Places of Deprivation of Liberty, and what budget would be allocated to this body.
It would also be helpful to know whether authorities had evaluated the training provided to public officials on human rights and the prohibition of torture. If this had been done, had there been any results, for instance a drop in the number of complaints against civil servants? The Committee member further enquired whether the National Observer would have a role to play in the training effort.
Another Expert asked how a citizen could approach questions of constitutionality. It would appear that Senegal had no constitutional court to which citizens could take relevant issues such as the acceptance of evidence obtained through torture. How weak was the judiciary? It would seem that the appointment of judges and their salaries were open to questions.
A Committee Expert asked several in-depth questions about the plight of persons with disabilities. She wondered, in particular, what legal measures were available to protect the rights of such people and what monitoring was taking place in the relevant institutions, which ranged from child institutions to psychiatric hospitals? It also remained unclear whether persons with disabilities chose legal representation themselves and how the need for legal counsel was defined. The Committee was lacking information on these important issues, along with details on laws pertaining to persons with disabilities.
For use of the information media; not an official record