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The Committee on Enforced Disappearances considers initial report of Senegal

Committee on Enforced Disappearances

8 March 2017

The Committee on Enforced Disappearances today concluded its consideration of the initial report of Senegal on its implementation of the provisions of the International Convention on the Protection of all Persons from Enforced Disappearance.

Coly Seck, Permanent Representative of Senegal to the United Nations Office at Geneva, explained that Senegal had ratified the Convention on the Protection of all Persons from Enforced Disappearance in 2008.  It was the third African country after Tunisia and Burkina Faso to do so. Although the specific crime of enforced disappearance, including as a crime against humanity, was not codified in the laws of Senegal, the country was going through a profound reform of its Criminal Code and criminal proceedings that would include a specific chapter dedicated to enforced disappearances.  Furthermore, since the election of President Macky Sall in 2012, laws had been passed, and institutions dedicated to the protection of human rights had been created to provide a legal basis and efficient safeguards for dealing with the issue for enforced disappearances.

In the interactive dialogue which followed, Committee Experts inquired about the applicability of the Convention in Senegal since the specific crime of enforced disappearances was not codified in domestic laws. Experts were concerned about past measures of amnesty that had provided pardon to perpetrators of crimes during the conflict in Casamance.  They feared that those measures would hinder the initiation of investigations and proceedings, the punishment of those responsible and the provision of reparation to the victims of enforced disappearances.  Questions were also asked about definitions of victims, adoption preceded by enforced disappearance and conditions in detention facilities.

In his concluding remarks Emmanuel Décaux, Committee Rapporteur for Senegal, said that the ratification of the Convention by Senegal was very important because it was a testimony of the will of the country to put its legislation in line international legal instruments.  He highlighted that Senegal benefited from a vibrant civil society and invited the authorities of the country to collaborate closely with of all of its organizations.  

Suela Janina, Committee Co-Rapporteur, in her concluding remarks, said that she hoped that those exchanges had been a good opportunity to ensure a better understanding of the Convention.  She hoped the reforms of the Criminal Code and criminal proceedings would reflect on the recommendations provided by the Committee.

Mr. Seck hanked the Committee for the fruitful dialogue and said that it would lead to an introspective process into the ways to improve the application of the Convention in Senegal.  He said that his country remained very committed to protecting and promoting human rights and wished to stand as an example for other countries.

The delegation of Senegal included representatives of the Ministry of Justice, the Ministry of Interior and Public Security, the Ministry of Foreign Affairs 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. today, when it will begin its consideration of the initial report of Ecuador (CED/C/ECU/1).
 
Report

The initial report of Senegal can be read here: CED/C/SEN/1.

Presentation of the Report

COLY SECK, Permanent Representative of Senegal to the United Nations Office at Geneva, said that Senegal fully engaged in the fight against enforced disappearances by ratifying the Convention in December 2008.  However, although the domestic legislative framework already covered most of the provisions included in the Convention, Senegal had not codified the specific crime of enforced disappearances in its law.  In the last ten years, the country had embraced a profound reform of its Criminal Code and criminal procedures, which should be finalized in 2017.  Section 3 of the new Criminal Code would be specifically dedicated to enforced disappearances and would criminalize that act through article 153.

Mr. Seck informed that members of the civil society had been closely involved in the process of the elaboration of the report following an inclusive dynamic.  He then provided an exhaustive briefing on the situation of human rights in the country outlining all the efforts that were made by the state in the sectors of health, education, gender equality, sustainable development and the protection of children’s rights. In the domain of health, for example, the country had started to work on universal coverage, with the goal of reaching 75 percent of coverage this year.  

The commitment of Senegal to the principles of democracy had been demonstrated by the three pacific changes in power that occurred in the last ten years. Since his election, Senegalese President Macky Sall had shown strong commitment to the defence and promotion of human rights, including the fight against enforced disappearances.  That was marked with the signing of an agreement between Senegal and the African Union in 2012, which had created the extraordinary African chambers in the Senegalese jurisdictions in charge of prosecuting perpetrators of crimes against international law.  Mr. Seck noted that the National Observatory of Places of Deprivation of Liberty in charge of controlling the conformity of institutions depriving people of freedom with international standards had been created in 2012.  Senegal was also committed to meeting international standards in the field of detention. Measures had been taken to fight against overcrowding in detention centers and long-lasting custodies.  A new detention centre providing 1,500 new places was under construction in the suburbs of the capital Dakar.  The limitation of the duration of committal orders to six months in criminal cases had been implemented in order to impede the generalization of long lasting custodies.

Finally, Mr. Seck informed that a constitutional referendum in 2016 had notably shortened the presidential term in office from seven to five year.  He listed several measures taken to combat corruption and fraud, as well as steps taken to protect persons in the context of the fight against terrorism.

Questions by Committee Experts
 
EMMANUEL DECAUX, Committee Member and Rapporteur for Senegal, took note that Senegal had ratified the Convention in December 2008 and was the third African country after Tunisia and Burkina Faso to do so and deliver a report.  Mr. Décaux outlined that those particular efforts by Senegal played an important role to galvanize the adoption of good practices by other States with similar judicial systems.

The Expert also took note that a reform of the Criminal Code would include a chapter dedicated to enforced disappearances, and asked if Senegal would recognize the right for its citizens to accept individual communications before the Committee.

In the report, the delegation had mentioned that a law would be soon adopted to transform the Senegalese Human Rights Committee into a commission for the protection of human rights, which would fully conform to the principles relating to the status of national institutions for the promotion and protection of human rights (Paris Principles).   The delegation was asked to provide details on when this law would be adopted allowing the creation of that institution.

He asked how civil society had been involved in the preparation of the report. Had non-governmental organizations formulated recommendations or comments?

How would the new article 153 cover for the aggravating and mitigating circumstances that had an impact on the length of sanctions, the Expert inquired.

Mr. Décaux recalled that no exceptional circumstances including war or political unrest could impede the application of the provisions of the Convention.  Which provisions of domestic law guaranteed that no exceptional circumstances whatsoever might be invoked as a justification for enforced disappearance?

He outlined that the Convention provided the obligation for a detainee to have access to a lawyer from the beginning of his arrest.  When would that provision be specified in the Senegalese legislative framework?

Mr. Décaux asked the delegation to explain how the terms employed in the Criminal Code, namely “the widespread and systematic practice of summary executions, abductions and subsequent disappearance of persons”, were in keeping with the constituent elements of the definition of enforced disappearance as a crime against humanity.

SUELA JANINA, Committee Member and Co-Rapporteur for Senegal, inquired about the statute of limitations in Senegalese criminal legislative framework and the way it would apply to the crimes of enforced disappearances.  She asked for clarifications about the measures taken to ensure that the continuous nature of the crime of enforced disappearance would be taken into account in legal proceedings.  Would there be a distinction between enforced disappearances as an individual crime and as a crime against humanity?  What would be the competent body to lead investigations over allegations of enforced disappearance, including when national armed forces were bearing responsibility in the crime?

Ms. Janina also asked for clarifications about the statute of amnesty measures that had been taken at the end of the conflict in the region of Casamance, from 1980 to 2005.  She was worried that this measures would hinder the initiation of investigations and proceedings, the punishment of those responsible and the provision of reparation to the victims of enforced disappearance.

The delegation was also asked to deliver details on how complainants and witnesses were protected against any ill-treatment or intimidation as a result of having lodged a complaint or provided evidence on a crime of enforced disappearance.

In the case public authorities or civil servants would be involved in crimes of enforced disappearance, Ms. Janina asked how the investigative procedure would be carried, given that article 106 of the Criminal Code provided for an exemption if the person accused could prove that he or she acted on the orders of a superior.

Finally, Ms. Janina pointed out to the fact that Senegal referred to the extraterritorial jurisdiction in cases of enforced disappearance constituting a crime against humanity.   She asked whether there were plans to adopt a similar provision for all other cases of enforced disappearance and if the country would have jurisdiction over cases in which the victim of the crime is lives in a foreign country.
 
Replies by the Delegation
 
The delegation recalled that Senegal was fully committed to providing a robust legislative framework against enforced disappearances in line with the provisions of the Convention and to ensuring its efficient application.  The delegation explained that Senegal had delivered its report with a substantive delay, which had been caused mainly by the fact that enforced disappearances were not specifically criminalized in the Senegalese domestic law.

With regard to the reform of the Criminal Code and criminal procedures, the delegation informed that Senegal had ratified most of international instruments and was striving to bring domestic law in line with its international commitments.  The delegation had set the goal to submit a comprehensive reform plan of the Criminal Code to the National Assembly by the end of 2017. 

The delegation further noted that a series of reforms had already been implemented in 2016 to take into account the fight against terror and other new issues Senegal was newly confronted to.  The Ministry of Justice was addressing the list of issues listed by the Committee on enforced disappearances.

Concerning the recognition by Senegal of the possibility for the Committee to receive individual communications, the delegation noted that there was a fear that such a provision would be a duplication of the role of the African Commission on Human and Peoples' Rights, which already recognized individual communications.

Regarding the role of the Senegalese Human Rights Committee, the delegate outlined the important role played by that institution in promoting human rights since its creation in 1970. The delegation recognized that this structure had experienced several problems in the previous decade, impeding it to act as a fully independent organ. However, the delegation also noted that after the election of President Macky Sall in 2012, the Committee had retrieved its efficiency and independence.  Its budget had been tripled and new personnel had been recruited.  A new law was to be passed in order to provide the members of that structure with powers of investigations without transforming it into a judicial institution.  The delegation said that it was difficult to give a precise timetable on the passing of the law because consensus was first needed on its content before it could be presented to the National Assembly.

On the issue of the involvement of civil society organizations in the elaboration of the report, the delegation said that eight non-governmental organizations had been consulted on the issue of enforced disappearance.  After the elaboration of the report, workshops had been organized allowing civil society organizations to make recommendations.
Regarding the aggravating and mitigating circumstances in penalties associated to crimes of enforced disappearances, the delegation said that such provisions were left to the discretion of courts.  Article 133 of the Criminal Code provided for the judicial avenues judges could refer to in order apply mitigating and aggravating circumstances.

Furthermore, the delegation asserted that no exceptional circumstances, be it a threat of war or political unrest, could be used as pretexts for any lack of respect of human rights, including the rights associated with the prevention of enforced disappearances.

As to the definition of enforced disappearances as a crime against humanity, the delegation stated that a legal review was ongoing in order to codify the specific crime of enforced disappearance in the domestic law.  Crimes that could be understood as enforced disappearances had already been prosecuted in the past.

About the amnesty laws adopted in 2004 at the end of the conflict in Casamance, the delegation opined that it was sometimes necessary to pardon in order to advance in a peace process.  However, that did not preclude victims from obtaining reparations.

The delegation noted that no specific provisions was currently considered to protect witnesses of enforced disappearances because the general law already provided for protection for complainants and witnesses in criminal procedure.

With regard to the possibility to exclude civil servants and public authorities from criminal procedures, the delegation asserted that any individual suspected or involved in a criminal procedure or investigation would be removed from functions until the case was concluded.   The delegation stressed that impartiality was fully respected.

Turning to the issue of extraditions in the case of a crime of enforced disappearance, the delegation said that article 4 of law 71, which provided for the general framework for extradition, would be the reference to follow.  Thus, there was currently no ground to review that law.

Follow-up Questions by Experts

EMMANUEL DECAUX, Committee Member and Rapporteur for Senegal, took note of the provisions of the Senegalese domestic legislative framework and asserted that the recognition of the possibility to present communications to the Committee would be a positive sign to adopt.

Coming to the sensitive issue of the conflict in Casamance, non-governmental organizations such as Amnesty International had highlighted that national rebels and rebels from neighboring countries had been committing criminal acts and that prosecutions should be led on the Senegalese territory.

SUELA JANINA, Committee Member and Co-Rapporteur for Senegal, stated that the continuous nature of the crime of enforced disappearance was not included in the legislation although it was of high importance since it was linked to the statute of limitations.  Had any plans been set up by the Senegalese authorities in order to reflect the statute of limitations in the case of enforced disappearance as an individual crime and as a crime against humanity?

As regard the amnesty measures taken after the conflict in Casamance, Ms. Janina asked if data and statistics were available.


Replies by the Delegation
The delegation explained that Senegal was a country evolving and continuously improving its legal texts.  It was said that Senegal was fully committed to align its domestic legislative framework with all international instruments, including the Statute of Rome which had founded the International Criminal Court, although it was now the target of criticism.

With regard to the prosecution of non-state actors such as armed groups, the delegation noted that the State took full responsibility to prosecute all the crimes committed on the Senegalese territory.  

The delegation also made a reference to the competence of the Senegalese Human Rights Committee, specifying that it was given a general mission to promote human rights and follow the recommendations given by international institutions such as treaty bodies.  In that regard, workshops had been regularly organized to exchange on that matter. Senegal had finished the elaboration of an action plan aiming at reviewed domestic legislative provisions following the recommendations raised through the Universal Periodic Review and by treaty bodies.

On the continuous nature of the crime of enforced disappearance, the delegation said it had taken due note of the Committee’s remarks, and added that Senegal was fully committed to reinforcing the codification of enforced disappearance in its domestic law.

The delegation also said that no statistics on the amnesty cases that emerged after the conflict in Casamance were available. After 2004, there had been no lists of victims partly because it was difficult to identify crime perpetrators.  Furthermore, the courts had not been seized with complaints against the victims of amnesty law.  The right to reparations had been ensured for all victims.  The head of the delegation emphasized the fact that amnesty had been adopted in order to implement peace in the peculiar case of Casamance.  It did not mean that no attention was given to the victims.  At the time, the Government had to guarantee peace and release hostages via negotiations.

Questions by Experts
 
An Expert asked for clarifications on whether the reform of the Criminal Code would include provisions to impede refoulement or extradition in the case that an individual would be exposed to a risk of enforced disappearance.  For example, would it be possible for an individual to appeal a decision of expulsion before the Supreme Court?

With regard to the access of non-governmental organizations to places of deprivation of liberty, he asked whether the authorizations delivered to those organizations willing to visit such places were general authorizations or if they needed to be reiterated.  Was there a list of civil sector organizations which could enjoy such authorizations?

The Senegal corpus of law provided that the maximum time for custody was 48 hours, with a possibility to be prolonged under authorization of the Prosecutor’s Office.  How many times could that prolongation be given?

With regard to the information on the conditions of detention, the Expert asked for clarifications on the protection mechanisms that existed in Senegal in order to make sure that proper information could be communicated to relatives of the victims on the date and time of arrest, but also on the state of health of the detainee, and the location of his or her corpse in the case of death.

He asked for clarifications on the legal ways for detainee to contest the lawfulness of  detention before courts and whether there could be any restrictions to the rights linked to the possibility to contest a judicial decision.  For example, what could justify a restriction to the right for an individual to communicate with his family or receive any form of counsel?

Senegal had said that a bill would be soon voted providing the creation of a biometric database. Was it possible to obtain details on the timetable of the adoption of that law?

Finally, the Expert asked the delegation whether specialized trainings on human rights were delivered to uniformed individuals and any other personnel in administration.  

Another Expert asked the delegation to provide clarifications on the definition of the victim in Senegalese law in order to see if it was in full compliance with the broad definition provided by the Convention.  Would civil action be available for individuals who had suffered the damage of an enforced disappearance?

She asked for the forms of reparations the Senegalese legislation provided for the relatives of a victim of enforced disappearances.  How would Senegal ensure that reparations included rehabilitation, restauration of dignity, or guarantee of non-reproduction?

The Expert further inquired about the legal status of the relatives of the disappeared person in respect of social welfare, family law and property rights.  Specifically, she asked if there were particular programmes dedicated to proving support to women who were often put in situation of vulnerability after a person had gone missing. 

Finally, she expressed concern over the loophole that existed in the Senegalese law which did not criminalize the removal of children. Where there any plans to criminalize such actions in the future?

Replies by the Delegation

Coming back to the issue of expulsion, the delegation ensured that any citizen could directly present their case to the Supreme Court to contest the lawfulness of a measure of expulsion.  The delegation also noted that in Senegal, there was a general prohibition of deporting an individual who would be threatened by death penalty or torture in her home country.  After bringing the criminalization of enforced disappearances into the Senegalese criminal code, Senegal would examine the possibility of applying the same principle to that peculiar crime.  In practice today, Senegalese courts would push for rejecting a deportation request if an individual was threatened by a risk of enforced disappearance.

The delegation emphasized the fact that once the criminalization of enforced disappearances was completed in Senegal, new definitions linked to that peculiar crime, such as the notion of continuing offence and a broader definition of the victim, would be taken into account.  To date, Senegalese courts had never been informed of such crimes.

Referring to the rights for non-governmental organizations to access prisons and places of deprivation of liberty, the delegation noted that they needed to write to the director of the centre and wait for the authorization to be given.  That procedure had to be followed for each visit.

Although 48 hours was the maximum time a person could be held in custody, that period could be extended under request by the prosecutor.  However, the total time could not extend more than 72 hours, and more than 96 hours in case of terrorist acts.

Regarding the creation of a biometric database, the delegation noted that, to date, only one private clinic in Dakar could proceed to DNA tests under the request of a court, for example in case of rape.  The establishment of a biometric database was currently being examined, but the delegation noted that the major problem was that it was extremely expensive to put in place.

The delegation explained that jurists and security forces had received regular trainings on human rights and were informed of the international treaties Senegal had ratified. Manuals and training on the prevention of torture had already been provided.  The Human Rights Committee in Dakar had been associated to these initiatives.

With regard to the definition of the victim, the delegation recalled that both the Senegalese Criminal Code and the civil judicial framework provided for a definition in line with the one given by the Convention.  Civil actions applied for any harm resulting from a crime.  The victim could ask for compensation as a result of any offence to their human rights. Relatives were entitled to receive compensation, including moral and material reparation.

On other forms of reparations, such as rehabilitation or guarantee of non-repetition provided in the Convention, the delegation said that the State would provide for such forms of compensation mainly through social assistance.  The delegation noted that a judicial decision was a sufficiently good form of restoration of dignity or reputation. Specific social services had been put in place in order to provide social assistance and support to women in vulnerable positions.

Senegal was currently in the process of creating a fund specifically dedicated to the victims of torture and would consider the idea of doing the same for the victims of enforced disappearances.

Regarding the application of the law in relation with the kidnapping of children, the delegation said that Senegal was party to the Convention on the Rights of the Child. As such, any crime committed against children was taken into account in the wide-ranging Senegalese legislation. In such cases, the general framework would be applicable.

With regard to secret detention, the delegation put the emphasis on the fact that in Senegal, the detention of an individual could only be abled by an appropriate authority, recognized by the State.  Since 1965, Senegalese law had provided that any civil servant who would detain a person outside of an authorized detention place would be punishable by prison.

On the issue of the provision of information on the conditions of detention, the delegation said that the national Criminal Code provided that if someone was placed in custody, the police officer would get in touch with the family and a legal counsel had to be appointed.

Follow-up Questions

An Expert sked if free legal counsel services and medical assistance existed in Senegal for vulnerable persons.

He outlined that the creation of a DNA database could be used for a broader scope than enforced disappearances, for example in the case of missing persons in the context of migration.

Another Expert was worried that the definition of the victim given by the Convention had not been fully embraced by the Senegalese legislation. If a friend of a victim of an enforced disappearance went before a court and asked for reparations, what procedure would be followed?

She highlighted that the signature of the Convention on the Rights of the Child was not sufficient to cover for the cases when children were victims of enforced disappearances. What was the legal procedure when there was an adoption preceded by a criminal action such as enforced disappearance?  Would the adoption be annulled?

Replies by the Delegation

With regard to the provision of medical assistance and legal counsel to vulnerable persons, the delegation said that the prosecutor might be asked to cover the costs. Human rights organizations could also be reached in such cases.  There was a national legal counsel with a specific fund aimed at assisting poor people through criminal proceedings.

On the issue of the definition of the victim, the delegation explained that after enforced disappearances were criminalized in the domestic law, any person who would be affected by the crime could have access to courts.  A friend of a victim of an enforced disappearance would have the full right to present the case of enforced disappearance to the prosecutor.  However, he would not be entitled to all the remedies and compensations the relatives of the victims could enjoy. 

Concerning the case of an adoption preceded by a crime of enforced disappearance, the delegation said that, under the Senegalese law, the adoption would be automatically cancelled.  If the child were abroad, the Senegalese authorities would work in close collaboration with foreign national authorities and institutions, such as Interpol or the judicial police, in order to begin the investigations.

Concluding Remarks

EMMANUEL DECAUX, Committee Member and Rapporteur for Senegal, thanked the delegation for participating to this constructive dialogue.  The ratification of the Convention by Senegal was very important because it was a testimony of the will of the country to put its legislation in line international legal instruments.  That strong political will had been illustrated by the strong commitment of the country to the Statute of Rome and its implication into the trial of foreign Chadian president Hissène Habré.  Senegal benefited from a vibrant civil society, stressed the Expert.

SUELA JANINA, Committee Member and Co-Rapporteur for Senegal, warmly thanked the delegation for its engagement in the dialogue.  She hoped that those exchanges had been a good opportunity to ensure a better understanding of the Convention and the interpretation given by the Committee.  She strongly encouraged Senegal to continue the reform of its Criminal Code and criminal proceedings, and hoped it would reflect on the recommendations provided by the Committee.

COLY SECK, Permanent Representative of Senegal to the United Nations Office at Geneva, thanked the Committee for the fruitful dialogue, which would lead to an introspection into the ways to improve the application of the Convention in Senegal.  The commitment of the country to the respect of international standards would be cemented with the specific mention of enforced disappearances in the Criminal Code.  Mr. Seck said that his country remained very committed to protecting and promoting human rights and wished to stand as an example for other countries.
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