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Working Group on Arbitrary Detention: Preliminary Findings from its visit to Bhutan (14 to 24 January 2019)

24 January 2019

Introduction

At the invitation of the Government, the United Nations Working Group on Arbitrary Detention conducted an official country visit to Bhutan from 14 to 24 January 2019. The Working Group was represented by Mr. Seong-Phil Hong (Republic of Korea, Chair-Rapporteur), Ms. Leigh Toomey (Australia, Vice-Chair) and Ms. Elina Steinerte (Latvia, Vice-Chair), and accompanied by staff from the Office of the United Nations High Commissioner for Human Rights. The Working Group thanks the UN Country Team, its Resident Coordinator and staff, for supporting the visit.

The Working Group extends its gratitude and appreciation to the Royal Government of Bhutan for inviting it to undertake this country visit, and for its cooperation throughout the visit.  In particular, the Working Group met with the Foreign Secretary of the Ministry of Foreign Affairs, the Minister for Home and Cultural Affairs, a Supreme Court Justice, the Officiating Attorney General, the Chief of Police, the Secretariat of the Gross National Happiness Commission, the Chair of the Anticorruption Commission, the Head of Treatment of the Bhutan Narcotics Control Authority, the Officiating Director of the National Commission for Women and Children, the Judge of the Family and Child Bench of Thimphu, the Deputy Director of the Bhutan National Legal Institute, and the Dean of the Jigme Singye Wangchuck School of Law, as well as various authorities in the districts visited.  The Working Group also recognises the numerous stakeholders within the country who shared their perspectives on the arbitrary deprivation of liberty, including representatives from civil society. The Working Group thanks all of them for the information and assistance they provided.

The observations presented today constitute the preliminary findings of the Working Group. They will serve as the basis of the forthcoming deliberations between the five members of the Working Group at its forthcoming sessions in Geneva.  This will be followed by a report that the Working Group will officially adopt and submit to the Human Rights Council at its 42nd session in September 2019.  

The Working Group visited over 20 places of deprivation of liberty in the districts of Thimphu, Chukha, Paro, Punakha, and Samtse, including police stations, long-term and open air prisons, child pre-trial detention centres, including one hosting women, youth development and rehabilitation centre in Chukha, homes for children, women and elderly, drop-in centres and a rehabilitation centre for treatment of drug dependency, and the psychiatric ward of the hospital. It was able to confidentially interview over 150 persons who are currently deprived of their liberty.

In determining whether the deprivation of liberty is arbitrary, the Working Group refers to the five categories outlined in its Methods of Work, namely: 1) when it is impossible to invoke any legal basis justifying the deprivation of liberty; 2) when the deprivation of liberty results from the exercise of certain rights guaranteed by the Universal Declaration of Human Rights or the International Covenant on Civil and Political Rights; 3) when the right to a fair trial has been seriously violated; 4) when asylum-seekers, immigrants or refugees are subjected to prolonged administrative detention without the possibility of an administrative or judicial review or remedy; and 5) when the deprivation of liberty constitutes a violation of international law on the grounds of discrimination of any kind.

Good practices and positive developments

During its previous visits to Bhutan in 1994 and 1996, the Working Group made a series of recommendations to address the arbitrary deprivation of liberty. Throughout its current visit, the Working Group was encouraged that a number of these recommendations have been implemented and significant progress has been made. These preliminary findings highlight these achievements, as well as some remaining areas of concern.  

Presentation to a court within 24 hours

During its 1994 visit, the Working Group recommended that every person who is arrested should be produced before a court within 24 hours so that the lawfulness of his or her detention could be reviewed. This recommendation has been adopted in section 188.1 of the Civil and Criminal Procedure Code of Bhutan 2001. The majority of detainees interviewed by the Working Group confirmed that they had been brought before a judge for their first remand hearing within 24 hours of their arrival to a police station, which is a remarkable achievement given that other jurisdictions do not meet such a tight deadline on a regular basis. The Working Group regards production before a court as an essential protection against arbitrary detention and other possible abuses of power, such as torture and other forms of ill-treatment, and commends the work of the police in ensuring that the 24-hour time limit is regularly met.

Open Air Prisons

Since March 2013, prisoners who have served 75 per cent of their sentence and are of good conduct are eligible for transfer to an Open Air Prison (OAP).  To date, 725 male inmates have been transferred to OAPs, and there are currently 185 male inmates residing in eight different OAPs across Bhutan. There are currently 27 female inmates based at the only OAP for females in Dawakha, Paro and their children are permitted to live in the OAP up to the age of nine years.  Inmates enjoy more freedom at OAPs than prisons, including the ability to earn money by undertaking work in the community, greater access to family members as well as the ability to move freely in the vicinity of the facility and to use mobile telephones.  The OAP system is a very welcome initiative that has reduced overcrowding in prisons and assisted inmates to prepare for reintegration into society, and the Government is encouraged to make greater use of OAPs.

Growth of civil society

The Working Group met with several representatives of civil society organisations (CSOs), and was encouraged that CSOs are growing in strength and number. It is clear that CSOs undertake an increasingly important role in society in Bhutan, particularly in providing assistance to economically disadvantaged and vulnerable groups.  For example, CSOs led the establishment of drug rehabilitation centres and have provided support to homes for children in conflict with the law. 

The Working Group urges the Government to support CSOs, including those that work on civil and political rights and access to justice, so that they can assist in addressing issues relating to arbitrary detention in Bhutan. Any support must include the training of more social workers with professional education in social work and counselling, in order for CSOs to be able to provide services in a sustainable manner.

Juvenile justice and the diversion program

The Government is to be commended for its efforts in the juvenile justice system, especially concerning the sentencing of juveniles and the anticipated establishment of family and child benches in the country.

In relation to sentencing, it is a positive development that juveniles are sentenced to half the sentence of an adult consistently across the country as provided for by section 115 of the Penal Code of Bhutan 2004 (as amended in 2011). This is a good practice to minimize the time that children spend in detention, allowing for better reintegration into society upon the completion of the sentence.

The Working Group commends the establishment of the first child-friendly court in the country in Thimphu at the end of 2016. This is the first step in the effective implementation of section 38 of the Child Care and Protection Act 2011. The efforts of this bench to expedite child cases are noteworthy, given that on average it takes about two months to complete the proceedings. The Working Group was informed of the ambitious plans to further expedite the proceedings with a view to completing the proceedings within a month. Provided that due process if fully respected, this could constitute effective implementation of section 146 of the Child Care and Protection Act 2011. The Working Group was pleased to learn of plans to open five more family and child benches across the country by 2023, and urges the Government to expedite this commitment.

The program put in place to divert children from the criminal justice system in minor cases in accordance with chapter 12 of the Child Care and Protection Act of Bhutan 2011, is a step forward. The Working Group was informed that 9 children were diverted from the criminal justice system in 2017 which appears to be a low number. The Government should increase its efforts to utilise the diversion program to ensure that, whenever possible, children do not come into contact with the criminal justice system. The Government should also strengthen the capacity of the National Commission for Women and Children (NCWC), especially by increasing the number of its professional counsellors and social workers, in order to enhance the diversion program and its effectiveness.

Expeditious trials

The Working Group notes that section188 of the Civil and Criminal Procedure Code of Bhutan (2001) gives the right to all defendants in criminal proceedings to a speedy trial. The Working Group was informed that, in practice, most trials are completed within a year from the start of the proceedings, and was able to confirm this positive development during its visit.

Detention prior to sentence

According to section 211 of the Civil and Criminal Procedure Code 2001, when a defendant who has been sentenced to imprisonment has previously been detained, the time already served in detention is deducted from the sentence. According to the testimony received, this provision is consistently applied in practice.  This is a significant achievement given that time served in detention is not always deducted from a sentence in other countries.

Immigration control

The Working Group understands that there are no immigration detention facilities in the country and the current practice is to seek the assistance of the police to hold those who have been found to be in breach of the Immigration Act of the Kingdom of Bhutan, 2007. This appears to have contributed to relatively few cases of immigration detention and reportedly, such detention generally would not last longer than a day. The Working Group views this as a positive practice and recalls that deprivation of liberty in any context must be a measure of last resort. The Working Group welcomes the restrained approach of the Bhutanese authorities towards the opening of new detention facilities and invites the authorities to consider carefully any initiatives that would lead to opening of new types of places of deprivation of liberty.

Custody Registers

During its first visit to Bhutan in 1994, the Working Group made a series of recommendations concerning the custody registers in places of deprivation of liberty.  During its present visit, the Working Group was pleased to see that all police stations it visited used the so-called ‘Working Group Format’ registers, which followed the recommendations issued in 1994. These registers were generally well kept and up-to-date.  Timely and punctual record keeping is an essential safeguard against arbitrary detention and is to be commended.

However, all police stations visited also used a large number of other registers, in some cases over a dozen registers, and often the information recorded in these other registers was duplicated.  In addition, some information could only be located in individual case files of the detainees. This may be counterproductive and the authorities should carry out an audit of what registers are actually required so as to ensure a more streamlined approach.

Instances of deprivation of liberty

In addition, the Working Group makes the following findings in relation to instances of arbitrary deprivation of liberty that it encountered during the visit.

Deprivation of liberty in the context of the criminal justice system

Non-bailable offences

According to section 199.8A of the Civil and Criminal Procedure Code of Bhutan 2001 (as amended in 2011), there are certain criminal offences that are considered to be non-bailable.  The courts are not permitted to grant bail to a person who has been charged with either (i) an offence against the security and sovereignty of the country, or (ii) an offence of or above felony of the second degree, which includes murder, treason, terrorism, kidnapping, statutory rape, trafficking of a child between 12 and 18 years of age, and aggravated armed robbery.

Mandatory pre-trial detention for non-bailable offences deprives a detainee of his or her right to seek non-custodial alternatives to detention, such as bail.  In addition, the imposition of pre-trial detention for certain non-bailable offences reverses the presumption of innocence found in article 7(16) of the Bhutanese Constitution of 2008, so that those charged with such offences are automatically detained without a balanced consideration of their individual circumstances, including the risk that they may abscond, interfere with evidence, or commit an offence.  International standards do not prevent pre-trial detention being ordered in the serious cases that are currently considered as non-bailable in the Civil and Criminal Procedure Code. Those standards do, however, require that detention only be ordered after a judicial authority has conducted an individualised assessment of whether pre-trial detention in each case is reasonable and necessary. 

Pre-trial detention

The Working Group observed that while there are some dedicated pre-trial detention facilities for children, there are no dedicated pre-trial detention facilities for adults in Bhutan. Instead, the pre-trial detainees are held in police stations where they in fact constitute the vast majority of detainees. The periods of pre-trial detention outside Thimphu are not excessive, which is commendable, but these periods are still longer than just a few days which would be the case for the usual police detention. Moreover, the police stations are not equipped for holding people for longer than just a few days as they do not have the requisite space and facilities. The Working Group observed pre-trial detainees held in cells, with no purposeful activities whatsoever and allowed out of cells only for very short periods, meaning they spend 23 hours a day in the cells. There was alsoa lack of beds, mattresses and warm blankets in some police stations, which was particularly worrying given the winter time. In some instances, pre-trial detainees were held together with sentenced individuals awaiting their placement in prisons. The Working Group was disturbed to hear of instances of informal punishments when police guards required the detainees to perform ‘military drills’ such as frog jumps, rolling on the back and front and sit-ups. In one facility, the detainees were required to hold their hands behind their backs as they walk as a sign of respect to the police officers.

Pre-trial detention should take place in appropriate facilities suitable for the length of such detention. It is paramount that any regime applicable to pre-trial detention facilities respects the non-convicted status of individuals and gives due respect to their presumption of innocence. Pre-trial detainees should be allowed to enjoy meaningful out-of-cell time and provided with a choice of purposeful activities. Anyone in detention, including those held in pre-trial detention, must be allowed to spend a reasonable part of the day outside their cells, in addition to at least one hour of exercise in the open air. All detainees should be provided with bedding appropriate for the prevailing weather conditions. All forms of punishment must be accompanied by safeguards against arbitrary application and any type of punishment must be respectful of human dignity. The Working Group urges the Government to put an immediate end to all forms of informal punishments.

Pre-trial detention of juveniles

During its time in the country, the Working Group saw dedicated pre-trial detention facilities for children in Thimphu and Phuntsholing. It was explained by the authorities that these facilities are not used to house children in conflict with law due to lack of need. Thus the facility in Thimphu was used to house women on pre-trial detention and in so-called ‘civil cases’ while the facility in Phuntsholing was empty since August 2018.

In principle the decision of the authorities in Thimphu is constructive and the Working Group commends the flexible approach by the authorities to maximize the use of the existing empty facilities to ensure better conditions of detention for other groups of detainees. However, during its visit to Thimphu police station the Working Group met a number of juveniles on pre-trial detention, held together with adults on the so-called ‘civil cases’ and having been relocated there from being held together with adult males on pre-trial detention only very recently.

International law strictly requires that juveniles should be separated from adults in detention as embodied in article 37 (c) of the Convention on the Rights of the Child as well as article 49 of the Child Care and Protection Act of Bhutan 2011. In this respect the Working Group calls upon the Government to ensure that children in pre-trial detention have adequate opportunities to education as well as participation in sports, physical exercise and leisure-time activities as per paragraphs 32 and 38 of the United Nations Rules for the Protection of Juveniles Deprived of their Liberty.

Female detainees

The Working Group observed that the criminal justice system in Bhutan does not address the needs of female detainees. For example, there is no dedicated prison facility for convicted female inmates, as the current facility used to detain women at Chamgang Prison is an interim measure until a more permanent facility is constructed. In addition, there is no pre-trial detention centre for women, with female inmates currently occupying the juvenile pre-trial detention facility at the Pre-trial Centre for Children in Thimphu. Furthermore, in Phuntsholing, the child pre-trial detention unit was empty and, in the absence of a dedicated centre for women, could have been used to house three female detainees who were being detained in very close proximity to the male detainees held in the police station.

There is only one OAP for women at Dawakha, Paro and female inmates are not currently able to transfer from Chamgang Prison to an OAP in another part of the country so that they could be closer to their family and community. Finally, the Working Group understands that there is currently no dedicated operational drug rehabilitation facility for the treatment of female drug dependents, as the Serbithang rehabilitation centre only houses men.  In line with its obligations under the UN Convention on the Elimination of All Forms of Discrimination Against Women, the Government should ensure dedicated and appropriate detention facilities to accommodate female detainees.

Lack of legal representation

Since the Working Group’s last visit to Bhutan in 1996, significant progress has been made in developing the legal profession and its capacity to represent criminal defendants. For instance, there was no law school and no lawyers, while at present there are over 200 private lawyers and approximately 120 lawyers in government service. The Jigme Singye Wangchuck Law School is now training future members of the legal profession, and lawyers who have gained qualifications in law abroad are able to receive further training at the Royal Institute of Management. Improvement in the provision of legal representation is also envisaged as a key strategy in achieving National Key Result Area 16 (Strengthening Justice Services and Institutions) in the 12th Five Year Plan through more effective delivery of legal services and in the Justice Sector Strategic Plan 2018-2023. The right to legal representation is also enshrined in articles 7(21) and 9(6) of the Bhutanese Constitution of 2008, as well as in other key legislation such as the Civil and Criminal Procedure Code of 2001 (as amended in 2011), Jabmi Act 2003, Child Care and Protection Act of Bhutan 2011, Evidence Act of Bhutan 2005, and Domestic Violence Prevention Act of Bhutan 2013.

However, further steps are needed to ensure that the right to legal representation is given effect in practice.  According to testimonies received, a majority of defendants in criminal matters did not have access to legal representation at crucial stages of their proceedings:  following arrest, during pre-trial detention, and during their trial and appeal.  Detainees are generally not aware of their right to a lawyer as they have not been systematically informed of this right by the police and, in many cases, cannot afford to retain a private lawyer. In some cases, detainees chose to represent themselves, either based on an incorrect understanding of the law that they would not be subject to a serious sentence if they were convicted, or because they had committed the offence and did not think that legal representation was important. Both attitudes indicate a general lack of understanding of the importance of having legal counsel to place all important aspects of each case before the court.

The Working Group was also informed that some detainees have been sentenced to life imprisonment despite having no legal representation at any stage of their proceedings.  The Working Group notes that there is still a significant number of historical cases under which prisoners are still serving life imprisonment. The Working Group is mindful that there is no parole for life sentence in Bhutan and as a result, these individuals have no prospect of release with the exception of amnesty. The Government should conduct an urgent review of all of these cases to determine whether there was any procedural irregularity during the original proceedings that occurred in the absence of legal counsel.

Additionally, in some cases, juveniles have been tried for serious criminal offences without the benefit of legal counsel. The lack of legal representation in these circumstances amounts to a grave violation of the right to a fair trial. According to international standards, a person who has been detained is entitled to legal representation at any time during his or her detention, including from the moment of apprehension, and effective representation must be provided by the State if the detainee cannot afford to retain his or her own lawyer.

While a legal aid fund has reportedly been established under the auspices of the Royal Court of Justice, the fund is not operational and is largely unknown to legal practitioners or public.  There appears to be a low level of awareness that a fund exists to provide free legal representation in criminal matters, and how to access it.  There is also no clarity on the mechanism for rendering legal aid, service providers, regulators and the scope of legal aid. Guidelines are currently being developed by the Cabinet to clarify how the legal aid fund will be accessed and used, including a means and merit test for persons seeking these services. However, there is not yet any agreement on how to determine whether a person is indigent and therefore qualifies for free legal representation, and how to ensure that the provision of free legal assistance is sustainable.  There are also no laws that deal specifically with the provision of legal aid. 

Options to improve the provision of legal representation include mandatory pro bono services by private lawyers and the provision of free legal advice from the growing number of law students being trained at the Jigme Singye Wangchuck Law School. A further option would be the ongoing use of the Jabmi system for the provision of basic legal services to assist in ensuring that more criminal defendants have access to legal advice.  Greater use of alternative mechanisms of resolving disputes (such as mediation or resolution of minor criminal matters at the Gewog level in the community) could also assist in reducing pressure on the legal aid fund and on the legal system overall. In the longer term, it will be important to determine a specific central agency that provides publicly funded defence counsel to those most in need of legal assistance. 

Legal literacy and awareness

In general, the Working Group noted a low level of legal literacy and awareness among the individuals interviewed during the visit. In some cases, the lack of legal awareness resulted in detention of individuals in criminal proceedings, which could have been avoided if they had been aware of the law.  This is particularly true of criminal defendants who did not have access to legal advice or legal representation.  For example, the Working Group was informed of several separate cases in which young men were facing a potential minimum sentence of nine years’ imprisonment for rape of a child above 12 years of age. In these cases, the defendants had not been aware that consensual sexual relationships with a female between the age of 12 and 16 amounts to a criminal offence. Similarly, a large number of individuals are currently detained in Thimphu and Paro in relation to civil cases for having failed to repay or otherwise meet the terms of a loan due to a lack of understanding of the obligations contained in commercial agreements.

The Bar Council and National Legal Institute will have a key role to play in disseminating information on these and other legal issues to the community. The Working Group notes that there is interest among government agencies in improving legal literacy, particularly among disadvantaged members of the community, and that this is a very positive development. One of the strategies in strengthening justice services and institutions in the 12th Five Year Plan involves ensuring that citizens are aware of laws and procedures.

Deprivation of liberty due to debt

During its visit, the Working Group met numerous detainees in police stations across the country on so-called ‘civil cases’. These arose effectively due to the inability of the  individuals to repay a loan. In such cases, after there has been a judgment confirming the debt, the debtor would be required to repay the owed sum. If the court order is not complied with, the courts would normally issue a summons to comply. Such summons would be issued repeatedly but if not complied with, an arrest warrant on the basis of the contempt of court would be issued and the police would arrest the debtor. The debtor would be brought to police station where he or she would be detained until they repay the debt. The time such individuals spent in detention ranged from few days to a couple of months to a year, with the maximum term that the Working Group came across being three years. The time spent in police detention was significantly longer in the capital Thimphu and Paro than in other cities and towns. While in Thimphu and Paro it was usual to find individuals spending more than a year in police detention in such civil cases, the detention time for such matters in other cities and towns was measured in days and weeks. In fact, some of such police stations engaged directly with the courts by, for example, producing a weekly report for the courts indicating the number of those held on civil cases in the police station along with the length of time they have spent there. In the view of the officers this assisted in reducing the time spent in detention. The Working Group commends these initiatives.

In general, those held in police station on civil cases were subjected to the same regime and rations as those detained on suspicion of having committed a crime and at times they were also kept together, which the Working Group considers to be unacceptable.

Moreover, such individuals had no possibility to work during their detention at the police so as to enable them to repay the debt and, in the vast majority of cases, the debt was reportedly subject to interest, which was accruing during the detention. Consequently, the individuals were caught in a vicious cycle as they were deprived of their liberty and unable to work, which in turn meant they were unable to earn a wage so that they could repay the debt. Most of the individuals in such situations had no real understanding of when they might be released as their only prospect for freedom rested with the family members raising the requisite sum of money. The Working Group observed the deep impact that such detention had not only on the individuals but also on their families who experienced breaking up of marriages due to the pressures brought about by the de facto indefinite detention. The Working Group regrets that these observations are similar to those made in 1994 and the follow-up visit in 1996. At the conclusion of both the 1994 and 1996 visits, the Working Group recommended that such individuals should be released.

International human rights law prohibits deprivation of liberty due to debt. This prohibition is non-derogable and in fact constitutes part of customary international law. As the Working Group has expressed previously, detention due to inability to pay debt is in itself arbitrary deprivation of liberty. It is also arbitrary as it discriminates against individuals on the basis of their economic status.

The Working Group urges the Government to cease the practice immediately and resort to alternative measures of debt recovery through, for example, reduction of payments from salaries and flexible repayment schedules.

Detention of guarantors

According to section 100 of the Civil and Criminal Procedure Code of Bhutan 2001, when a person has agreed to assume personal liability in acting as a guarantor, he or she is responsible for the performance of any decree or order. The Working Group was informed that detainees must provide a guarantor in certain criminal matters as well as for people detained in civil cases as a condition of release.  For example, a guarantor is required before a detainee can be transferred to an OAP or to a drug rehabilitation centre.  In some cases, detainees have not been able to locate a guarantor, as they did not have a relative who was willing or able to provide a guarantee, and have not been able to benefit from such transfers.

In addition, according to some interviewees, if a detainee for whom a guarantee has been provided absconds from the place of detention, the guarantor will be detained until the detainee is located. The detention of a person who provides a guarantee but has not committed any criminal offence is inherently arbitrary. The Government should immediately cease this practise. Alternatives to such detention exist, including requiring the guarantor to forfeit a bond if the detainee does not meet the terms of a decree or order.

Remission of sentences

Since 2013, any prisoner who is assessed by the Good Conduct Review Committee operating in each prison as having been of good conduct while serving his or her sentence will be eligible for a reduction (or remission) of the sentence by one month in each year. This initiative is an example of a positive detention practice as it allows for the earlier release of prisoners who have demonstrated through their good behaviour that they have been rehabilitated and are ready to be reintegrated into society. The granting of remission also represents important progress for the Government in strengthening rehabilitative and reformative programs for inmates, as envisaged in its 12th Five Year Plan.

However, the granting of remission does not take into account the period of time in which a person was detained in a police station. According to testimony received, some detainees are held in police stations across Bhutan for lengthy periods – in initial police custody, during pre-trial detention, while awaiting trial, following conviction (until their transfer to a prison facility), and pending the hearing of appeal proceedings. As a result, despite having spent a period of detention in a police station, detainees do not gain the benefit of remission for that time.  In some cases, detainees effectively have to choose between appealing their case, which may entail a further waiting period in police custody, and not pursuing the appeal so that they can be transferred to a prison facility where the period of detention is taken into account in calculating remission of the sentence. 

Moreover, remission only extends to detainees who have entered into a remission agreement to be of good conduct. The Working Group was informed that signature of this agreement usually takes place once the detainee is transferred to a prison. The granting of remission should automatically apply to all cases of detainees who have been of good conduct, and should be based upon all of the time that a person has spent in detention, including time spent at a police station. 

Deprivation of liberty in the context of drug control

Drug and alcohol addiction is a serious and growing problem across Bhutan.  According to statistics provided by the Royal Bhutan Police, 530 people were subject to criminal proceedings for drug offences across the country in 2018. The Working Group interviewed many detainees who had been charged with or convicted of drug-related offences, particularly in relation to the personal possession and consumption of psychotropic drugs such as SP+.  It is clear to the Working Group that there is strong political will on the part of the Bhutanese authorities to effectively address this problem.

Against this background, there are several issues of concern to the Working Group in relation to drug-related detention.  According to section 85 of the Narcotic Drugs, Psychotropic Substances and Substance Abuse Act of Bhutan 2015 (NDPSSA Act), an agency designated by the Bhutan Narcotics Control Authority (BNCA) may conduct drug testing of any person who causes a public nuisance or poses a probable risk to the public and is suspected on reasonable grounds to have consumed or to be consuming any substances controlled under the Act in any public place. There appears to be no judicial control of the circumstances in which an agency or the police may obtain a blood or urine sample, and that can be obtained without a warrant. The Working Group was informed that persons arrested on suspicion of having committed a drug offence do not have the right to refuse to provide a blood or urine sample to the police, and that many do not refuse to do so, particularly when they do not have legal representation. Section 86 of the NDPSSA Act allows for the detention of a suspect who declines to provide a sample.

The Working Group also learned that, in some instances, detainees with serious addiction problems had been under the influence of drugs and/or alcohol at the time of their arrest and interrogation, casting doubt on whether they were capable of understanding their rights and providing accurate statements to the police, particularly in the absence of family members or legal representation.  Some detainees were able to access effective medical treatment while they were experiencing withdrawal symptoms in the early stages of their detention, while others did not.

In addition, the Working Group understands that there is a clear delineation between individuals who are eligible for compulsory rehabilitation and those that will be detained.  According to information received, a person found in possession of up to 20 pieces (or tablets) of prohibited narcotics is not prosecuted, provided that he or she presents to a BNCA approved drop-in centre for detoxification, counselling and/or treatment.  However, persons in possession of a larger quantity of the same prohibited narcotic (for example, 21 pieces) will be subject to prosecution for a criminal offence such as drug trafficking. The Working Group considers that all persons found to be using prohibited drugs should, in the first instance, be able to voluntarily participate in treatment.

The Working Group also understands that the police may refer cases involving drug dependency to the BNCA drop-in centres for assessment of whether the person requires counselling, detoxification and compulsory treatment. The decision on the type of treatment required is made by a Treatment Assessment Panel (TAP) consisting of clinical experts, a peer counsellor and a legal officer. In some cases, police officers were also reportedly members of the TAP, which is inappropriate given the role of the police in referring the case in the first place. The Working Group was informed that, if an individual who has been assessed by the TAP does not accept its findings, he or she has no right to challenge the decision and is transferred to a three-month program of compulsory rehabilitation at Serbithang Rehabilitation Centre in Thimphu.  Females who are required to undertake rehabilitation are often placed in other centres, such as the Tsaluna Rehabilitation Centre in Thimphu which is in principle reserved for voluntary treatment.

Police station registers indicate that a significant number of individuals are currently detained in relation to drug offences, which represents a potentially overwhelming challenge to the efficient and timely operation of the criminal justice system.  In addition, many of those interviewed – both service providers and drug dependents – considered that the detention was not the best method of dealing with drug dependency. Instead, most interviewees considered that rehabilitation - with an emphasis on avoiding relapse - is far more effective. An early detection model of drug users at high risk is envisaged under chapter VI of the NDPSSA Act through the establishment of institutions with facilities to treat substance abuse through counselling and other rehabilitative program, as well as appropriate after-care. The Working Group considers this to be an appropriate model, which recognises the importance of addressing drug dependency at the earliest stages.

The Working Group wishes to emphasize that the absolute prohibition of arbitrary deprivation of liberty and the safeguards which are in place to guard against such instances apply to everyone, including those arrested, detained or charged with drug-related offences, as well as those undergoing compulsory rehabilitation programs for drug addiction.

Deprivation of liberty in the context of psychosocial disability and social care

There are currently no facilities for individuals with psychosocial disabilities in the country apart from a small psychiatric ward in the Jigme Dorji Wangchuck National Referral Hospital in Thimphu. Although the overall capacity of the ward is 20, it is divided in two units, one of which provides care for persons with psychosocial disabilities and the other is used for detoxification programs for those with alcohol and drug dependency.  This means that there are only 10 beds in the ward for persons with psychosocial disabilities. 

                                                                                                                                
The approach has been to provide care in the community, which, as long as appropriate and adequate professional care is ensured to everyone who requires it, is commendable. The Working Group encourages the Government to increase its efforts in the provision of the appropriate professional medical care in the community to those with psychosocial disabilities.  In addition, the Government should raise the numbers and professional capacity of the medical professionals who provide care in the psychiatric ward of the National Referral Hospital in Thimphu, consistent with its signing of the UN Convention on the Rights of Persons with Disabilities in 2010.The Government should ratify this international instrument without delay.

Finally, there are also homes operating for vulnerable groups, including women and children, in difficult circumstances such as domestic violence. The Working Group observed that, in some cases, the residents of these homes and shelters were not readily able or willing to leave the facility and, in most cases, did not attempt to do so. These homes are providing a vital social service to people most in need who would otherwise have no place to live.  The Working Group encourages the Government to continue to provide support to these homes and shelters so that their residents are able to reintegrate into the community.

International legal framework

In order to give effect to the above findings, it is important that the Government carefully reviews its current international human rights obligations.  In particular, the Working Group urges the Government to become a State party to the International Covenant on Civil and Political Rights, which contains important safeguards in relation to the right to liberty, as well as other international human rights treaties.

Opinions of the Working Group on Arbitrary Detention

The Working Group requests the Government to give full effect to its Opinions adopted involving Bhutan.

Conclusion

These are the preliminary findings of the Working Group. We look forward to continue to engage in the constructive dialogue with the Royal Government of Bhutan over the following months while we determine our final conclusions in relation to this country visit. We acknowledge with gratitude the willingness of the Government to invite the Working Group and note that this is an opportunity for introducing reforms to address situations which may amount to arbitrary deprivation of liberty.