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29 November 2006

The Special Rapporteur on torture and other cruel, inhuman and degrading treatment or punishment, Manfred Nowak, issued the following statement today in Asunción:

The Special Rapporteur on torture and other cruel, inhuman and degrading treatment or punishment, Manfred Nowak, undertook a visit to Paraguay from 22 to 29 November 2006. Mr. Nowak would like to take this opportunity to thank the Government for having invited him to visit the country and for extending to him its full co-operation during the visit.

The purpose of the visit was twofold: in addition to assessing the current situation of torture and ill-treatment by means of independent fact-finding, the Special Rapporteur wishes to continue the process of co-operation with the Government of Paraguay aimed at the common goal of eradicating torture and ill-treatment and improving the conditions of detention.

The Special Rapporteur recognizes that Paraguay has come a long way in overcoming the legacy of the military dictatorship under General Stroessner by building up democratic institutions based on the rule of law and respect for human rights. In particular, he wishes to refer to the 1992 Constitution which includes a comprehensive bill of rights and a variety of institutions and procedures for the protection of human rights. Article 5 of the Constitution ensures an absolute prohibition of torture or other forms of cruel, inhuman, or degrading punishment or treatment. The Government should also be commended for having ratified most of the international and inter-American human rights treaties and for having accepted the competence of international treaty monitoring bodies to decide upon individual complaints. The Special Rapporteur is also impressed by the efforts of the Truth and Justice Commission to guarantee the victims’ right to know the truth about the gross and systematic human rights violations committed by the former regime and its attempts to bring those responsible to justice.

While the ratification of international instruments constitutes an important step, this alone will not prevent torture and ill-treatment. Accordingly, the Special Rapporteur has spent the last week gathering information about how the prohibition on torture and ill-treatment is implemented in Paraguay. He has met with government officials, including the Minister of Foreign Affairs, the Minister of Justice and Labour, the Minister of Interior, the Minister of Defence, the National Police Commissioner and the Commander of the Armed Forces. He also met with representatives of the Supreme Court, the Office of the Attorney General, the Human Rights Commission of the National Congress, the Ombudsman, the Truth and Justice Commission, the three inter-institutional commissions for visiting places of detention and representatives of non-governmental organizations.

He also spoke with individual victims and witnesses and carried out unannounced visits to places of detention, including police stations, prisons and military detention facilities in various locations in the country.

Prison conditions

The Special Rapporteur visited Tacumbú Prison and, on two occasions, Buen Pastor Women’s Prison in Asuncion as well as the regional penitentiary centres in Ciudad del Este, Coronel Oviedo and Villarrica. The maximum number of prisoners is exceeded in most facilities and there is severe overcrowding at Tacumbú and Ciudad del Este. For example, there are currently almost 3000 prisoners at Tacumbú, despite the fact that its maximum capacity is 1200. These detainees are protected by no more than 40 prison guards, although the head of security stressed that at least 120 guards would be required. The paucity of prison staff in these facilities makes it difficult to adequately protect detainees against inter-prisoner violence and other threats to their personal safety, including sexual violence. The prison director in Ciudad del Este even feared that the lack of prison guards might lead to a mass escape.

The Special Rapporteur is concerned by the failure of the authorities of Paraguay to ensure to the prison population an effective enjoyment of essential human rights as well as minimum standards of human dignity as laid down in Article 10 of the International Covenant on Civil and Political Rights and the United Nations Standard Minimum Rules for the Treatment of Prisoners. Convicted prisoners are usually not separated from pre-trial detainees. Old prisons are in a deplorable state regarding the accommodation facilities, hygiene, and provision of clothing, food, mattresses and other essential items. Despite the laudable efforts of the Government to construct new facilities with significantly improved hygiene, such as in Coronel Oviedo, the failure of the authorities, both in old and new prisons, to provide sufficient food, health care, educational, leisure and rehabilitation facilities, means that detainees are dependant on others to provide them with those items necessary for a dignified existence. As a result, prisoners are either taken care of by their families or obliged to pay money to prison staff in order to obtain basic services such as edible food, medical provisions and housing in acceptable facilities. Poor people without family support find themselves in a situation of severe discrimination and deprivation of the right to human dignity. This failure of the authorities, together with the low salaries of prison staff, necessarily leads to corruption which is endemic in the prison system.

The Special Rapporteur was particularly concerned by a wing in the prison of Ciudad del Este, which is known as the “black hole”. Poor detainees are kept there in extremely overcrowded conditions without light, ventilation, basic hygiene and facing the constant threat of being infected with tuberculosis. The Special Rapporteur recognises that many of the problems he observed are caused by a lack of funds and encourages international donors to support the Government in its serious attempt to improve prison conditions. However, he also notes that some important yet inexpensive steps could be taken, such as providing detainees with more work opportunities, recreational activities, adequate food and basic medical services. In addition, the better use of non-custodial measures for accused persons, particularly those accused of petty crimes, would significantly contribute to solving the problem of overcrowding. For example, the Special Rapporteur interviewed a detainee who had spent one and a half years in pre-trial detention on suspicion of having stolen a bicycle.

Situation of torture and ill-treatment

The definition of torture in the criminal code does not comply with the definition of article 1 of the UN Convention against Torture. According to the criminal code, an act only constitutes torture if the perpetrator intends to destroy or seriously damage the personality of the victim which is very difficult to prove. This is an extremely narrow definition and would exclude many acts that are classified as torture under the Convention against Torture. As such, the Special Rapporteur would strongly encourage the Government to comply with its international obligation to introduce an amendment to the criminal code, and bring the definition of torture in line with the Convention against Torture.

The Special Rapporteur visited various police stations in different parts of the country. On the basis of numerous interviews with detainees and witnesses as well as medical evidence, he concludes that torture is still widely practiced during the first days of police custody. In particular, the use of torture to obtain confessions seems to be a standard practice of the criminal investigation police at Ciudad del Este, where the methods used include beating, stripping detainees naked, placing plastic bags over their heads and squeezing their testicles. Credible allegations about the use of similar methods were also received from other regions. The Special Rapporteur considers that the use of torture by the criminal investigation police is exacerbated by the heavy reliance placed on confessions in the judicial system. In this regard, the Government should take active steps to implement its obligation to effectively investigate every suspected case of torture and to ensure that evidence which may have been obtained by torture is not relied upon in criminal proceedings.

While torture is still widely practiced in police custody, the situation in prisons has improved greatly over recent years. The Special Rapporteur welcomes the prison inspections carried out by the three inter-institutional commissions and the closure of Panchito Lopez Juvenile Facility and the recent closure of Emboscada High-Security Prison, which were both notorious for the use of torture and ill-treatment. During his visits to prisons, the Special Rapporteur did however observe excessive use of isolation cells to punish detainees and was particularly concerned by the practice in some facilities of immediately placing new arrivals in isolation cells before allowing them to join the rest of the prison population. The Special Rapporteur also received allegations of beatings by prison guards.

In relation to the military, the Special Rapporteur is concerned by the fact that torture is not criminalised in the military criminal code. He received allegations about the beating of conscripts and degrading treatment, such as a form of hazing known as “descuereo”, which involves forcing individuals to carry out extreme forms of exercise as a method of punishment.

One of the most important reasons for the continuing practice of torture and ill-treatment is impunity. It appears that there have been no convictions for torture, and very few prosecutions, if any, since the criminal code entered into force in 1999. In this regard, the Special Rapporteur emphasises that the Government has a binding obligation to ensure that all allegations of torture are investigated and prosecuted and notes that many of his interlocutors, including the police chief and other superior officers at Ciudad del Este, which is notorious for the use of torture, informed him that they had never received any official complaints of torture or ill-treatment. The Special Rapporteur emphasises that the victims of torture or ill-treatment are often too frightened to complain about their treatment and that as such all relevant actors including police, public prosecutors and prison directors must stop turning a blind eye and take seriously their obligation to initiate investigations where they have reasons to believe that an individual may have suffered torture or ill-treatment. In this regard, medical examinations when detainees are arrested, transferred and released must be carried out as a standard procedure.

Implementation of the Optional Protocol to the UN Convention against Torture

The Special Rapporteur considers the system of preventive visits to places of detention one of the most important mechanisms to prevent torture and ill-treatment and to improve conditions of detention. He commends the Government of Paraguay for being among the first countries having ratified the Optional Protocol which requires States parties to establish independent national commissions with the right to carry out unannounced visits to all places of detention. He attended a national discussion forum organized by the Ministry of Foreign Affairs together with the Geneva-based Association for the Prevention of Torture (APT) and CODEHUPY. The Special Rapporteur fully supports the decision of the forum to set up a working group consisting of governmental and non-governmental representatives with the mandate to propose the most suitable mechanism to carry out such preventive visits.

Preliminary recommendations

The Special Rapporteur recommends that the Government of Paraguay:

· Criminalize torture in full accordance with the definition contained in Article 1 of the Convention against Torture, and impose appropriate penalties
· Investigate effectively every suspected case of torture and bring the perpetrators to justice
· Introduce effective measures aimed at preventing torture, such as medical documentation of torture allegations, effective access to lawyers, and monitoring of interrogation methods.
· Provide detainees and prisoners with basic necessities, such as adequate food, health care, more work opportunities, education and recreational activities
· Eradicate corruption in the prison system
· Increase the use of non-custodial measures as a means to reduce the overcrowding of prisons.
· Ensure the effective separation of remand and convicted prisoners, as well as juveniles and adults.
· Establish effective and independent national mechanisms to carry out preventive and unannounced visits to all places of detention in full compliance with the requirements under the Optional Protocol to the Convention against Torture.

In addition, the Special Rapporteur recommends that the relevant UN bodies, donor Governments and development agencies assist the Government of Paraguay in its efforts to modernize its police and prison system by means of adequate training and constructing new facilities.

The invitation of the Government to the Special Rapporteur is in itself a statement of its willingness to open up to independent and objective scrutiny and a testament to its cooperation with the international community in the area of human rights. The Special Rapporteur is assured that every effort will be taken to implement his recommendations. He stands ready to offer his full cooperation and assistance in this regard.

The Special Rapporteur will submit a comprehensive written report to the Human Rights Council.

Mr. Nowak was appointed Special Rapporteur on 1 December 2004. As Special Rapporteur he is independent from any government and serves in his individual capacity. The Commission first decided to appoint a Special Rapporteur to examine questions relevant to torture in 1985. The Mandate covers all countries, irrespective of whether or not a State has ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. He has previously served as a member of the Working Group on Enforced and Involuntary Disappearances; as the UN expert on missing persons in the former Yugoslavia; as the UN expert on legal questions on enforced disappearances; and as a judge at the Human Rights Chamber for Bosnia and Herzegovina. He is Professor of Constitutional Law and Human Rights at the University of Vienna, and Director of the Ludwig Boltzmann Institute of Human Rights.

For further information on the mandate of the Special Rapporteur, please visit the website: http://ww.ohchr.org/spanish/issues/torture/raporteur/index.htm

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