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禁止酷刑委员会审议摩纳哥的报告(部分翻译)

日内瓦(2016年11月14日)——禁止酷刑委员会今天下午结束审议摩纳哥关于落实《禁止酷刑公约》条款情况的第六次定期报告。
 
摩纳哥司法部部长菲利普·纳米诺(Philippe Narmino)在呈交报告时表示,摩纳哥已于2013年成立了国家人权机构,即保护人权、自由及调解高级专员;这是摩纳哥人权保护体系的联络点,并且接收来自任何个人的申诉。为强化其法律框架,摩纳哥于2011年通过了一项关于预防特定形式暴力的法律,以加强对儿童、妇女和残疾人的保护,同时,2016年一项关于保护国家安全的法律更新了对警察和行政机关的多项任务授权,使身份信息管理受到妥善的法律保障,并允许使用恰当手段处理威胁到国家根本利益的问题。纳米诺先生强调,欧洲委员会的禁止酷刑和其他残忍、不人道或有辱人格的待遇或处罚委员会于2007年和2013年两次访问摩纳哥,并未发现对于警察或摩纳哥国家监狱工作人员的虐待投诉。
 
在随后的讨论中,委员会专家满意地指出,摩纳哥没有关于酷刑的投诉,其完善履行了公约。然而,还需要进一步强化法律体系以确保法律的确定性和保障力度,并且需要采取公约第一条对酷刑的定义。体罚问题未得到妥善处理,没有明令禁止一切情况下的体罚。另一个令人关切的问题是在法国拘留场所,尤其是尼斯监狱中,长期服刑人员的被拘条件。专家要求代表团解释,与法国难民和无国籍人士保护办事处合作审批庇护所申请和发布咨询意见是基于何种法律框架。另一个令人关切的问题是13岁以下的儿童可被监禁:这与摩纳哥十分全面的儿童保护框架以及其声称的尊重儿童权利相违背。讨论中还提出了其他问题,包括对法官的监督、设置程序落实不驱回原则,以及培训伊斯坦布尔协议,以更好地发现寻求庇护者和被拘留者受酷刑情况,并做更完善记录。
 
摩纳哥常驻联合国日内瓦办事处代表卡罗尔·兰特里(Carole Lanteri)在总结发言中表示,摩纳哥高度重视专家的评价,并将等待专家的结论性意见。
 
摩纳哥代表包括司法部、警察局、外交与合作部以及摩纳哥常驻联合国日内瓦办事处代表团的代表们。
 
委员会将在11月15日(周二)上午10点继续公开会议,审议斯里兰卡的第五次定期报告(CAT/C/LKA/5)。
 
 
Report

The sixth periodic report of Monaco can be read here: CAT/C/MCO/6.
 
Presentation of the Report
 
PHILIPPE NARMINO, Minister and Director of Judicial Services of Monaco, said that the promotion and protection of human rights was the priority in the national and international policies of Monaco, to which all were committed: the Royal Family, the Royal Government, law makers and civil society.  Monaco was a member of the Council of Europe and intended to ratify its convention on cybercrime soon, while the conventions on the protection of children from sexual exploitation and abuse, on the prevention of violence against women and domestic violence, on the fight against human trafficking, and that on the fight against terrorism, had already been ratified.  Furthermore, Monaco had ratified the Optional Protocol to the Convention on the Rights of the Child on a communications procedure in 2014, the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women in 2015, and the Arms Trade Treaty in 2016. 
 
In 2013, the national human rights institution - the High Commissioner for the Protection of Rights, Freedoms and Mediation – had been set up and was now the focal point in the human rights protection system which could receive complaints from any individual.  The system of support to victims had been set up in 2014 and it included the provision of support to victims of torture.  In terms of measures taken to strengthen the legal framework, Monaco had adopted in 2011 a law on the prevention of specific forms of violence to strengthen the protection of children, women and persons with disabilities, including by adopting victim protection procedures and setting up specialized courts.  It had also adopted the law on the rights and freedoms of persons with disabilities, and had adopted an amendment to the electoral law, giving detainees the possibility to vote via the procurator in national and municipal elections.   In July 2016, the law on the preservation of national security had been adopted and it updated the various mandates of the police and administration, allowed for identity control properly enshrined in the law, and allowed authorities to use proper instruments to deal with threats to the fundamental interests of the Principality.  Monaco was fully aware of the need to strike a balance between the requirement to protect national security and the requirement to protect private life, so a commission had been set up to monitor the legality of surveillance measures, as a check and balance measure.  The law had also modified the Penal Code by introducing new dispositions concerning individual terrorist activities. 
 
Monaco was participating in accommodating refugees from the Middle East – 35 Iraqis or Syrians had arrived or would soon arrive, said Mr. Narmino, noting that it represented one refugee per 1,000 inhabitants.  The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment of the Council of Europe had visited the country in 2007 and 2013; its reports stated that no complaints of mistreatment by the police had been found, and that no complaints of mistreatment had been filed by detainees in the Monaco State Prison.  The European Committee had commended Monaco for the implementation of the recommendations it had issued following the visit in 2007.
 
Questions by the Country Co-Rapporteurs
 
SEBASTIEN TOUZE, Committee Expert and Co-Rapporteur for Monaco, took positive note of the fact that no complaints for torture had been made and congratulated Monaco for such a state of affairs, as well as for its respect for its international obligations and its efforts to ensure that the national law conformed to the international law.  
 
The Expert noted the need to bring the conditions of detention in line with international minimum regulations and asked about the intentions of Monaco to ratify the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. 
 
What were the intentions concerning the registration of the High Commissioner for the Protection of Rights, Freedoms and Mediation with the International Criminal Court’s list of national human rights institutions?
 
The Expert noted with satisfaction the possibility for a judge to refer directly and explicitly to the Convention and welcomed the establishment of extraterritorial jurisdictional competence for acts of torture and cruel treatment, mutilations, organ trafficking, and for rape and other forms of sexual violence.
 
Monaco must ensure that the definition of torture was strictly in conformity with Article 1 of the Convention, that it was a specific and distinct crime in the criminal legislation and in the criminal code of procedure, and that the statute of limitations did not apply, which currently was not the case. 
 
The lack of definition in conformity with Article 1 meant that the issue of corporal punishment was not properly dealt with and was not explicitly prohibited in all settings, including in the family and all institutions.
 
Had Monaco adopted any provisions prohibiting the invoking of the order of a superior officer to justify acts of torture?
 
Which precise rules of procedure applied to asylum seekers in conformity with Article 3 of the Convention and what was their legal foundation?  What was the competent body that could pronounce on an asylum application?  Could asylum seekers appeal the decision, according to which criteria and to which body?
 
What was the role of the French Office for the Protection of Refugees and Stateless People, which was apparently charged with examining the applications of asylum seekers and issuing an advisory opinion, and what was the legal foundation and the framework governing its involvement?
 
The delegation was asked to inform on the number of requests examined, the nationality of asylum seekers, the number of refused demands and from which countries, the accepted advisory opinions, refused advisory opinions, and the procedural rules that applied to asylum seekers. 
 
Was the French Office for the Protection of Refugees and Stateless People using French asylum rules and procedures for the processing of the demands – this question was particularly important as it appeared that the office was not in conformity with the Convention.  Which guarantees were in place to ensure that all procedures used in cases of asylum requests to Monaco conformed to international obligations?
 
The Expert expressed concern about the lack of follow up on the detention of persons sentenced by Monacan courts serving their sentences in French prisons. 
 
Had consent of all persons been obtained prior to their transfer to French detention centres to serve their sentences?  What was the justification for sending persons serving long sentences to French places of detention, particularly to Nice and Tarascon?  This point was particularly important given the fact that the conditions of detention in prisons in Nice were well below international standards.
 
The system and procedure for the compensation and reparations to victims of torture were not in place, noted the Expert, recalling that the law on reparation to victims of torture must be specifically included in the national legislation.  What was the position concerning forms of reparation and would the 2011 law on crimes of specific violence be modified accordingly?  What was the role and objectives of the National Victims Association?
 
What could explain the lack of specific training on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment?
 
ESSADIA BELMIR, Committee Expert and Co-Rapporteur for Monaco, noted with satisfaction the long-standing support of Monaco to the Committee. 
 
Lack of a specific definition of torture in domestic legislation had ramifications on the interpretation of the Convention, for example on the use of the order of a superior officer to justify torture.  Monaco had successfully adopted the definition of terrorism, why could the same process not be applied to the definition of torture?
 
There was a need to further clarify the issue of environmental terrorism and criminal legislation must be based on very precise terms in order to facilitate the work of the judiciary.
 
Could the delegation clarify the sentence called “banishment” and how could it be used, considering that it seemed to be a rather obsolete piece of legislation?
 
In terms of juvenile justice, the Expert noted that a child under 13 years of age could be placed in custody, which was very hard to understand considering the very comprehensive child protection framework in Monaco and the stated respect for children’s rights.  What was the state of affairs concerning the administration of juvenile justice and how could this anomaly be corrected?
 
The Expert noted the power and authority of the Directorate of Legal Services over the judiciary, and expressed concern that this jeopardized the independency of the judiciary.  How was the independence of the judiciary assured?
 
Questions by Experts
 
A Committee Expert asked what happened if acts of torture were committed on the territory of the Principality and which criminal provisions were applicable.  Which provisions of the Criminal Code targeted and punished crimes of torture?
 
What administrative or judicial procedure was in place to implement the principle of non-refoulement as contained in Article 3 of the Convention?  What complaint and appeal mechanism was in place against administrative decisions concerning refoulement and Immediate Expulsion Orders?
 
Had the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, commonly known as the Istanbul Protocol, been incorporated in training of medical personnel, to improve the detection and documentation of torture among asylum seekers and detainees?
 
What measures were being taken to improve the conditions of detention in the Monaco State Prison as recommended by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment?
 
Monaco could be more generous in the matter of refugees and asylum seekers, especially give the commitment to refugee protection by the highest authority, the Prince himself.  The Expert warned against introducing the notion of protecting a specific group of refugees, particularly Christians from the Middle East, as it was in contravention with international norms and standards.
 
Had the procedure of medical screening upon entry into any detention facility been set up?  Who employed and trained the doctors administering the screening, and were they trained in the early detection of signs of torture?
 
It was commendable that there were no complaints of torture in Monaco.  What were the complaints issued against the police, if any?  Had the High Commissioner for the Protection of Rights, Freedoms and Mediation received any complaints against law enforcement officers?
 
Considering that the occupancy rate in pre-trial detention facilities was more than 80 per cent, Monaco had an extremely low prison occupancy rate – only 26 per cent.  What could explain this, and how were the prisoners serving sentences in France counted?  More than 89 per cent of prisoners were foreigners - what measures were in place to ensure that detainees received all information about their rights in a language they understood?
 
ESSADIA BELMIR, Committee Expert and Co-Rapporteur for Monaco, asked about the status of the bill to fight racial discrimination.
 
Responses by the Delegation
 
The delegation explained that banishment was an old provision of the law which was obsolete; it was issued against nationals demanding their removal from the territory but was never applied.
 
Refoulement measures were applicable to foreign nationals whose presence was no longer wanted in the territory.  Administrative acts of refoulement had been issued against 36 persons in 2015; among those, there were no residents or asylum seekers.  They were all persons who had been convicted in a court of law for various offences and crimes, such as assault.  The refoulement measures were issued to remove the person from the territory of Monaco and did not involve their return to the country of origin.
 
Monaco could issue or receive requests for extradition.  The authority that ruled on requests for extradition by other States was issued by the Prince. 
 
Courts had jurisdiction over all acts of torture committed on the territory of the country.
 
Responding to questions concerning persons serving sentences issued by Monacan courts in French detention facilities, the delegation said that Monaco had a number of bilateral agreements signed with France, with which it had a very friendly relationship.  All apprehended persons were held in pre-trial detention in the Monaco State Prison, which was a short-term prison and was not organized or structured to accommodate long sentences.  Persons receiving long-term sentences were immediately transferred to penitentiary facilities in France, first to Nice, which was geographically closest, where detainees were then allocated to an appropriate prison facility in France. 
 
A mechanism for the follow-up of detainees serving sentences in France was in place, whereby Monacan authorities could visit them in any facility where they served and verify the conditions of detention.  It was regrettable that there were instances of ill treatment of prisoners in France today. 
 
Space was a key challenge in Monaco and it did not have any intention of constructing another prison.  Stays in the short-term prison usually did not exceed a period of several months, but a judge could make a decision for a detainee to serve their long-term sentence in Monaco. 
 
The Directorate of Judicial Service did not have any powers over the judiciary; it was the Council of the Magistrate which pronounced sanctions against judges.
 
The delegation highlighted specificities of Monaco and its small population, noting that legislative priorities at the moment did not include the ratification of the Optional Protocol.  As for the extension of the mandate of the High Commissioner for the Protection of Rights, Freedoms and Mediation to fulfil the functions under the Optional Protocol, the delegation said that it was a new institution, which had been established on the basis of the Paris Principles and was therefore fully independent and could decide how and at which basis it could discharge its mandate, including whether and how it would participate in the national human rights institutions registry of the International Criminal Court.
 
Monaco had been providing flexible financing to the Voluntary Fund for Victims of Torture at the Office of the High Commissioner for Human Rights.  Monaco was a very small country, its population of 35,000 lived on a very small territory of two square kilometres, said the delegation and stressed that it had provided generous support to refugees from Syria and Iraq to date – it had received one refugee per 1,000 inhabitants, which was more than other countries.  Most of the refugees were Christian as they had been proposed for urgent relocation by the United Nations Refugee Agency due to their extreme vulnerability to persecution.
 
It was true that there was no specific prohibition of acts of torture in domestic legislation, although the possibility of criminal sanctions for such acts existed; Monaco was not able to modify its legislation in such a short time to align it with the Convention.
 
The compensation mechanism to victims of torture under the common law system was already in place and it was more protective of the victim.
 
There were enough elements in the law to provide for an adequate definition of terrorism, including environmental terrorism, said the delegation and pointed to the information provided in the report.
 
The bill on the fight against technological crime had established a new crime of hate speech against persons on the basis of their ethnicity, race, origin and sexual orientation.  There was a register of racist acts in which four acts of racist hate speech crime had been registered over the past several years.  There had been two sentences for racist insults since 2010. 
 
Concerning the administration of juvenile justice and the modalities pertaining to short-term detention, the law on police custody of 2013 contained a number of provisions for the detention of juveniles: children under the age of 13 could only be detained for crimes which carried more than five years in prison, and the children could only be detained for up to 72 hours if the crime was of a sufficiently grave nature.  Children over the age of 13 could be detained, and the maximum duration of detention was the same as for adults.
 
There had been two cases of child sexual abuse in 2015; six proceedings had been brought forward for pornographic content on the Internet.  There had been no recorded case of complaints for torture or mistreatment by the police.
 
All judges were given training on human rights instruments, including on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as part of their initial training.  Monaco was open to the Experts’ suggestions on how to ensure continued training in this matter.  As far as the penitentiary staff was concerned, their initial training included the European Guidelines and this could be enriched with the information on the Istanbul Protocol. 
 
Follow-up Questions by the Experts
 
SEBASTIEN TOUZE, Committee Expert and Co-Rapporteur for Monaco, said that what made Monaco special was that it already perfectly implemented the Convention, as no complaints for acts of torture had been brought forward.  The focus of this discussion must be on legal certainty and security, as expressed by the adoption of the definition of torture in line with Article 1 of the Convention, and here Monaco was one step behind.  Monaco also did not have a proper compensatory regime for victims. 
 
Another issue of concern was the condition of detention of persons serving long sentences in French prisons, particularly in the prison in Nice.  What were the principles of cooperation with the French Office for the Protection of Refugees and Stateless people on examining asylum applications and issuing advisory opinions?
 
ESSADIA BELMIR, Committee Expert and Co-Rapporteur for Monaco, raised the issue of oversight of judges, and asked whether it was the Supreme Council of Judiciary, or the Director of the Judicial Service, and asked the delegation to explain the fact that a child under the age of 13 could be detained. 
 
Other Experts asked about the complaints mechanism and the possibility of appeal against refoulement and immediate expulsion decisions; the appeal mechanism to decisions made in matters of asylum by the French Office for the Protection of Refugees and Stateless People; whether medical services in detention facilities were available 24/7; and the procedure in place if a case of torture was established during medical screening.

Responses by the Delegation
 
With regard to the principle of legal certainty and security, particularly in relation to legal provisions applicable to torture, the delegation said that Monaco fully supported the provisions of the Convention, and was aware of how keen the Committee was for Monaco to include the legal definition of torture in its legal framework.  This was a matter of legislative opportunity, and this definition would be embodied in a bill which would be placed on the legislative agenda when an opportunity arose.  The definition would one day be incorporated in the law.
 
Responding to the concern expressed about prison overcrowding in France and monitoring of conditions of detention of Monacan prisoners serving sentences there, it was explained that many prisoners were in fact French citizens and they had the right to request a transfer to French prisons.  Since 2010, the French and Monacan authorities had been working on an agreement to allow the sentencing authority to visit prison facilities and visit detainees.  The arrangement had not yet become fully operational, but there were regular contacts with French authorities.  Eight detainees had been transferred to French prisons recently, some of them with long prison sentences.
 
Due to the limited capacity of Monacan authorities, an agreement had been reached with the French Office for the Protection of Refugees and Stateless People to examine asylum requests and issue advisory opinions on behalf of Monaco.  Because of its geographical position – a small country surrounded by Schengen States -  there were no cases of asylum seekers reaching Monaco; there were, however, people who had settled in Monaco and who requested asylum, including on the grounds of fear of torture or persecution if returned to the country of origin.  Monaco worked with the French Office for the Protection of Refugees and Stateless People, but domestic remedies were available to anyone in the country, including through appeals to the Supreme Court for pardons and amnesty.
 
The delegation confirmed that the Director of the Judicial Service no longer had the power of oversight of judges, but it was the Supreme Council of Judiciary since it had been created; the procedure had not been triggered yet.
 
The definition of terrorism was very broad, especially with regard to environmental terrorism. 
 
There had been no cases of minors committing crimes which would call for their detention for a number of years; there were safeguards in place designed to protect children, and the legislator did not consider the need to amend the juvenile justice law.
 
Concluding Remarks
 
CAROLE LANTERI, Permanent Representative of Monaco to the United Nations Office at Geneva, said that Monaco valued the Experts’ comments and would be awaiting their concluding observations.  It was possible that by the time of the next dialogue, certain aspects might have changed, as had been the case so far.
 
JENS MODVIG, Committee Chairperson, thanked the delegation and wished them a safe trip back.

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