Committee against Torture
26 April 2018
The Committee against Torture this afternoon completed its consideration of the fourth periodic report of Senegal on its implementation of the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
The Permanent Representative of Senegal to the United Nations Office at Geneva, Coly Seck, introducing the report, highlighted that Senegal had invoked universal jurisdiction in matters of torture in 2007. The amendment of the custody regime and the adoption of new legal articles related to the Rome Statute further contributed to the consolidation of the legal framework for the protection of human rights. Following the signing of the 2012 agreement with the African Union establishing Extraordinary African Chambers within the national jurisdiction, and the 2013 judicial cooperation agreement with Chad, Senegal had successfully prosecuted and convicted the former President of Chad for crimes against humanity, war crimes and torture. Several measures had been adopted to improve the conditions of detention, including alternative sentencing, construction of new prisons, and the setting up of the National Observatory for places of detention in 2009 to complement the national preventive mechanism. Furthermore, Senegal had abolished the death penalty in 2004, adopted the law against human trafficking in 2005, and had strengthened the fight against female genital mutilation, which had resulted in a big reduction of this practice.
Committee Experts referred to the ongoing legal reform and urged Senegal to set the timetable for the adoption of amendments that would ensure compliance with the Convention, including in the definition of torture. An important point of concern was the systematic use of pre-trial detention – responsible for 45 per cent of all detentions - and the lack of effective application of fundamental safeguards for persons deprived of liberty. For example, the length of custody in the context of terrorism and State security could be up to 12 days, and a medical examination – another fundamental safeguard, particularly against torture and ill-treatment – had to be paid out of the detainee’s own pocket if requested by a detainee. Places of detention suffered poor material conditions, overcrowding, and the systematic violation of human rights. There were very few lawyers in the country - some 350 lawyers and fewer than 500 magistrates, mostly concentrated in the capital – which jeopardized the effective enjoyment of fundamental safeguards throughout the national territory. Experts raised the issue of judicial independence, noting that as long as the President of the Republic was presiding over the High Council of the Judiciary, this important body would not be fully independent from the power of the executive. Experts congratulated Senegal for the conviction of Hissène Habré, the former President of Chad, for torture, war crimes and crimes against humanity, and urged it to make greater progress on the compensation and reparation for victims of those massive human rights violations.
In concluding remarks, Mr. Seck pledged Senegal’s strong commitment to the continued effective implementation of the Convention against Torture.
Jens Modvig, Committee Chairperson, thanked the delegation of Senegal for their articulate and well-organized responses.
The delegation of Senegal consisted of representatives of the Ministry of Justice, Ministry for Foreign Affairs and for Senegalese Abroad, Ministry of Interior, Ministry for Armed Forces, Ministry of Health and Social Action, Penitentiary Administration Dakar, and the Permanent Mission of Senegal to the United Nations Office at Geneva.
The Committee will issue the concluding observations on the report of Senegal at the end of its sixty-third session on 18 May. Those, and other documents relating to the Committee’s work, including reports submitted by States parties, can be found on the session’s webpage.
The webcast of the Committee’s public meetings is available via the following link: http://webtv.un.org/meetings-events/.
The Committee will next meet in public at 10 a.m. on Friday, 27 April to start the review of the fifth periodic report of Belarus (CAT/C/BLR/5).
The Committee was considering the fourth periodic report of Senegal (CAT/C/SEN/4).
Presentation of the Report
COLY SECK, Permanent Representative of Senegal to the United Nations Office at Geneva, at the outset, reiterated the firm commitment of Senegal to the mandate of this Committee and the collective fight against torture. The law n°2017-05 of 2007 had amended article 669 of the Criminal Procedure Code concerning universal jurisdiction in matters of torture. With the adoption of new articles of the Criminal Code and the Criminal Procedure Code related to the Rome Statute, Senegal had further consolidated its legal framework for the protection of human rights. Those measures, together with steps taken to amend custody, allowed for a better protection of rights in Senegal. The 2016 law amending article 5 of the Criminal Code had strengthened the legal aid from the moment of arrest.
In addition to criminalizing torture in the national law, Senegal remained committed to pursuing perpetrators of international crimes committed in Chad between 1982 and 1990. In this, and following the agreement with the African Union signed in 2012, Senegal had established Extraordinary African Chambers within its jurisdiction. The judicial cooperation agreement signed with Chad in 2013 complemented this arrangement. The establishment of those instruments had allowed for the prosecution and conviction of the former President of Chad for crimes against humanity, war crimes and torture. It was important to highlight in this context that Senegal was one of the few countries which had designated torture as an autonomous crime against international public order, said Mr. Seck.
The National Observatory for places of detention, set up in 2009, was an independent authority which completed the national preventive mechanism and was the prime interlocutor of the Sub-Committee for the Prevention of Torture. Senegal had taken a number of measures to improve the conditions of detention, including through alternative measures to detention like suspended sentences, probation, and release on parole. The punishment of acts of torture was indeed effective and there had been cases in which police officers had been brought to court and sentenced. Detention and custody were carefully regulated and were placed under either the public prosecutor or the judge.
Turning to other examples of the progress made, Ambassador Seck underlined the abolition of the death penalty in 2004, the adoption of the law against human trafficking in 2005 and the consequent setting up of the Unit for the Fight against Trafficking in Persons, and the framework for the protection of victims of exploitation and all forms of servitude. Senegal had ratified the Convention on the Rights of Persons with Disabilities and its Optional Protocol, and the International Convention for the Protection of All Persons from Enforced Disappearance. In 2008, it had established the National Observatory for the Rights of Women, later replaced by the Equality Observatory, and had strengthened the fight against female genital mutilation, which had resulted in a big reduction of this practice.
Questions by the Committee Co-Rapporteurs
SÉBASTIEN TOUZE, Committee Expert and Co-Rapporteur for the report of Senegal, noted that the Committee had received only one report from civil society, and none from the national preventive mechanism nor from the national human rights institution, which made the Committee wonder about the place given to those important institutions.
Turning to the legal framework, Mr. Touze commended Senegal for the commitment to amend the Criminal Code to bring the legislation in line with international obligations, and noting that the project was currently only in the form of a draft, asked when this important reform would be adopted. The draft indeed contained the majority of elements from article one of the Convention, however several acts of torture as defined in the Convention were missing from the draft amendment. Another concern related to this reform referred to sentences that were rather weak considering the severity of the crime, and the sentencing criteria were missing as well. Could the delegation inform about disciplinary sanctions meted out against officers who perpetrated acts prohibited by the Convention?
The fundamental legal safeguards must be universally guaranteed, stressed the Co-Rapporteur, and expressed concern that in Senegal, as stated in the State party’s report, the effectiveness of those was impaired by illiteracy and poverty. What measures were in place to ensure the universal application of those fundamental rights? From which point in the process of deprivation of liberty were those rights applicable?
The effective implementation of fundamental safeguards might be impaired by the fact that there were very few lawyers in Senegal – some 350 lawyers and fewer than 500 magistrates; furthermore, most were concentrated in the capital, which meant that people in custody in other parts of the country did not have an immediate access to a lawyer. Additionally, lawyers were given only 30 minutes with their client, which was contrary to international standards. Could the delegation inform on steps taken to address this situation and so protect persons in custody from ill-treatment?
Mr. Touze was concerned about the strict custody regime and the fact that a person could be held in custody for an indeterminate duration and without a legal basis. There was a lack of legal certainty concerning the length of custody, access to a lawyer was not guaranteed throughout the duration of custody even if it went over 24 hours, and the access of detainees to a medical examiner was contingent on the payment of fees. What was the effective practice regarding the implementation of the right of a detainee to inform a relative or a person of choice from the moment of deprivation of liberty? The delegation was asked to inform about the outcomes of any appeals concerning the length of custody and to explain the custody regime for minors.
There had been deaths in custody, noted the Co-Rapporteur with concern, and asked about any subsequent investigation in the matter.
The conditions of detention in Senegal were an issue of major concern, given the inadequate level of material conditions and the systematic violations of human rights in places of detention. Prison overcrowding was one particular problem, since the average occupancy rate in prisons was 120 per cent and in some prisons, such as in Rebeuss prison in Dakar, it was double. The prison population was constantly increasing since 2000, while 45 per cent of prisoners were in fact in pre-trial detention, which was particularly worrying. What was the situation concerning the implementation of alternative measures to detention?
The delegation was asked to explain the practice of full body searches, inform on the regulation and implementation of the practice of solitary confinement, and outline the measures taken to improve the very grave material conditions of detention, especially concerning heat isolation, access to water and sanitation facilities, and adequate living space.
As for health care in prisons, Mr. Touze noted that health units in prisons managed by the Ministry of Justice were poorly equipped while health agents were mostly nurses and medical assistants. There were only four medical doctors in the penitentiary health system. What was being done to ensure that each inmate had full access to adequate health care, and especially prisoners with mental health issues? According to the reports by the prison authorities, 50 prisoners had died in 2015 – were the figures available for 2016 and 2017?
The delegation was asked to comment on complaints of cruel and inhumane treatment of prisoners, which seemed to be rather frequent in some prisons, for example in Rebeuss, and to inform on steps taken to adequately address those complaints.
The situation of women in detention was a concern. There were two detention centres for women, both in Dakar region, while 11 others housed both male and female detainees. It was reported that 72 per cent of women in detention were in pre-trial detention, and it seemed that there was no separation between convicted prisoners and women held in preventive detention. Children could be held with their detained mothers until the age of three, and as of July 2015, there were 11 such children. However, the conditions for these children were not adequate.
Children could be imprisoned from the age of 13, and until the age of 18 were under the jurisdiction of children courts. In 2016, 442 minors had been deprived of liberty – were up to date figures available? What was the situation of juvenile detention in Senegal?
CLAUDE HELLER ROUASSANT, Committee Expert and Co-Rapporteur for Senegal, commended the establishment of the Human Rights Directorate in 2011 under the Ministry of Justice, which was in charge of ensuring the compliance of the Government of Senegal with its international human rights obligations.
A number of reforms had been announced in several important areas, in particular the reform of the Criminal Code and the Code of Criminal Procedure, but their status was not clear – were those still in their draft forms, or had they been already adopted?
The Human Rights Committee had been established in 1970 with a general mandate to promote and protect human rights. However, it had lost its accreditation status in 2012 as it had not been compliant with the Paris Principles, particularly in terms of the independent appointment of members. The law to establish the national human rights commission, which would further strengthen the Human Rights Committee, had not yet been adopted – what was the status of this bill?
The National Observatory of places of deprivation of liberty, set up in 2009, was facing a great deal of challenges across the board, in particular the lack of human and material resources, which prevented it from fulfilling its mandate effectively. What was the Government doing to bolster the role of this important institution, both by providing it with adequate resources and implementing its recommendations?
Concerns had been expressed about the lack of judicial independence, both in terms of the composition of the High Council of the Judiciary and the influence and the power of the executive in this regard. The Committee was particularly struck by the fact that there were only 358 magistrates for a population of 15 million.
Senegal continued to be a country of origin, transit and destination for trafficking in persons, particularly for labour and sexual exploitation. The Committee took note of the measures taken to combat human trafficking, including the adoption of the law, the establishment of the specialized unit to fight trafficking in persons, the preparation of the national action plan, and awareness raising measures.
One of the particular issues of concern in Senegal was the situation of the talibé children - an estimated 50,000 children aged five to 15, who lived in the Koranic schools, and who were forced by their teachers to beg in the streets. The 2016 programme put in place by the Government to protect the talibé children and remove them from the streets had seen some 1,500 children being put in shelters; however, according to reports by several non-governmental organizations, most had returned to their Koranic schools. Lack of funding and lack of institutional coordination hampered the effectiveness of this programme. What steps were being taken to put an end to impunity for the exploitation and ill treatment of children by teachers in these schools?
Turning to the question of amnesty for the crimes and violations committed during the armed conflict in Casamance in 1982 between the Government forces and the independence movement, could the delegation comment on the persistent allegations of enforced disappearances in this region?
The Co-Rapporteur commended Senegal for hosting a large number of refugees, including from Mauritania, the Central African Republic, Rwanda, Liberia, Gambia, Burundi, and the Democratic Republic of the Congo. The delegation was asked to comment on the forced deportation of refugees and asylum seekers, the detention of unaccompanied minors, and explain how the phenomenon of massive migratory flows towards Europe from West Africa played out in Senegal.
How were actions taken to disseminate national and international juridical instruments for the prevention of torture assessed and what was their impact?
With regard to the victims of torture, Mr. Heller noted the absence of the law on compensation for victims, the absence of rehabilitation programmes, and the lack of access to medical or social assistance. This situation should be corrected by the ongoing reform – what was the status of the draft bill? The delegation was asked to explain how complaints of torture and ill treatment could be filed, and whether the Istanbul Protocol was being systematically used in documenting allegations of torture.
With regard to the fight against terrorism, the Co-Rapporteur recognized the complex political regional context and the steps Senegal had taken to amend its laws to create a legal framework for counterterrorism, but was concerned by the very vague definition of a “terrorist act” in the Criminal Code. Its diverse interpretations gave greater power to the authorities in terms of arrests, detentions, investigations and confiscation of goods. There was a separate sentencing regime for acts of terrorism and procedures governing pre-trial detention were stricter.
Finally, Mr. Heller expressed concern about the growing instances of harassment, intimidation and arbitrary detention of human rights defenders and journalists, and the use of force during peaceful assemblies, which sought to limit the exercise of freedom of assembly. Could the delegation comment on this situation, and on the newly adopted Media Law and the Electoral Law?
Questions by the Committee Experts
Other Committee Experts took up the situation of “illegal” migrants in detention who were in administrative detention but were held together with the general detainee population, and asked what steps were being taken to remedy the situation.
Experts congratulated Senegal for following through on the Committee’s recommendations on the establishment of universal jurisdiction in the case of Hissène Habré, the former President of Chad. The Extraordinary African Chambers in the Senegalese court system had handed down a conviction for torture, war crimes and crimes against humanity in May 2016. What progress, if any, was being made on compensation for victims?
The delegation was further asked to clarify the definition of the child and explain the child protection system, particularly for the talibé children; inform on measures taken to strengthen the implementation of the law on female genital mutilation, in particular through improved reporting of cases; and explain the sentences handed down in the case of gang rape.
Rape was criminalized and punishable by five to 10 years’ imprisonment, but the law was rarely enforced and rape was widespread in the country; furthermore, spousal rape was not defined in the law. Committee Experts asked the delegation to comment on those reports and the reports of a rise in violence against women and gender-based violence, and to inform on steps to investigate and prosecute gender-based violence and improve the enforcement of the domestic violence law. Was sexual violence against girls in schools expressly prohibited and what was being done to address the allegations of sexual violence committed by Senegalese peacekeepers in the Democratic Republic of the Congo?
JENS MODVIG, Committee Chairperson, noted that, given the very low number of medical doctors in the country and the difficulty of recruiting them into the prison system, the application of the Istanbul Protocol and its crucially important provision concerning the initial examination of newly arrived detainees and prisoners, was up to nurses. What training did they receive in this regard, were they aware of the system in place to pass on the information on identified cases of torture, and how many such cases had been referred to date?
Replies by the Delegation
In response to Experts’ questions, the delegation explained the role of civil society organizations at the national level, saying that, first and foremost, Senegal attached great importance to cooperation and collaboration with national human rights institutions and civil society organizations. The National Consultative Council for Human Rights was a Government body that comprised representatives of all ministerial departments, civil society organizations and national human rights institutions represented by the Human Rights Committee. It was in charge of drafting reports and monitoring Senegal’s implementation of and compliance with international human rights obligations. The National Observatory for places of detention had contributed to the present report to the Committee against Torture.
With regard to the reform of the Criminal Code and the Criminal Procedure Code, a delegate confirmed that the reform process was underway and some matters such as those related to counterterrorism and cybercrime had already been adopted. Other matters relating to the definition of torture were currently being reviewed.
Explaining the sanctions for acts of torture, the delegation said that the law prescribed a sanction of minimum five and maximum 10 years of imprisonment, which was the most severe sentence allowed under the law. That was why Senegal deemed that that sanction regime was satisfactory and matched the severity of the crime. The minimum sentence of five years could not be reduced under any circumstances. Torture could be treated as an offence or as a crime; if it was considered a universal crime, the sentence ranged from 30 years to life.
As for the impact of illiteracy and poverty on the effective enjoyment and application of fundamental legal safeguards, the delegation said that Senegal invested great efforts in combatting illiteracy, which often was a barrier to the effective enjoyment of rights.
Any person deprived of liberty had the right to legal aid and defence from the point of arrest; therefore, a lawyer could be present from the moment of arrest. The arresting officer had the obligation to inform the detainee and the lawyer of the rights, and from that moment on, the lawyer had 30 minutes to consult with the client. Lawyers could be present at any further inquiry; they could access the client immediately, stressed a delegate, noting that this right was applied consistently and could not be revoked. The insufficient number of lawyers jeopardized the effectiveness of the application of the fundamental safeguards. Steps were being taken to remedy the situation through increased training of new lawyers and two competitive entries that would take place this year.
A person deprived of liberty could inform a family member or a lawyer at any time.
Custody was 48 hours in length, renewable at the request of the criminal investigation officer, who had to provide justification for the extension. The public prosecutor had ot approve such requests. In all cases related to the security of the State and terrorism, custody lasted for 98 hours and that was also renewable. Once the investigation was open, the investigating magistrate was the only one with the authority to make custody-related decisions.
On the systematic use of pre-trial detention, the delegation stressed that the prosecutor or the examining magistrate would usually decide to detain the person only under certain and well-defined circumstances, such as the disruption of public order. The maximum duration of pre-trial detention was up to six months, while in criminal cases, there was no maximum duration. Senegal strictly adhered to the principle of the separation of detained minors, both male and female, from the adult prison population.
The practice of the retour de parquet was extremely rare and exceptional. Senegal was working on abandoning the practice altogether.
As far as material conditions of detention were concerned, Senegal had undertaken a comprehensive study into the situation of overcrowding and was taking a number of measures to address that situation. One was the construction of a new prison with 1,500 places in Sébikotane, which had already started, the planned building of six maisons d’arrets in each of the regions, and the rehabilitation of some existing prison buildings.
An important step forward was the amendment of the Criminal Code concerning alternative sentences; the law was not yet in practice since the bodies in charge of its implementation had not been set up.
The delegation explained that the purpose of comprehensive, full-body searches was not to intimidate prisoners but to prevent entry into prison of prohibited goods, or correspondence. The practice would be reduced once the penitentiary system had adequate equipment such as full body scanners or surveillance cameras. Sanitary and hygiene conditions in places of detention were acceptable within the limits of the resources allocated.
In terms of the provision of health services in prison, which was provided by the State, there were not enough medical doctors to serve each prison, but each place of detention had at least a nurse if not a medical doctor. More complex cases were referred to health structures outside of prisons.
The bill on refugees had undergone all stages of technical validation, including by a technical committee comprising all ministries and the national human rights institution. Senegal had an agreement with Spain on managing legal labour migration flows signed in 2006, and there was another similar agreement with France.
The National Observatory of places of detention had been set up to monitor the enjoyment of rights in the context of detention, including the protection from torture. It was an independent organization with its own means and resources, and was at the heart of the national system of monitoring of places of detention. Senegal was fortunate to be one of the first countries in West Africa with a national preventive mechanism, which was completely independent from the Government and had the freedom to visit all and any place of detention. Every effort was being made to bring the Senegalese Commission for Human Rights back to A-accreditation, which it used to enjoy but had since lost, especially to ensure its full independence in line with the Paris Principles.
As for victim compensation in the trial of Hissène Habré, the delegation explained that both the court in Dakar and the court in Ndjamena had received the requests.
The High Council of the Judiciary had been reformed in 2017, which had effectively increased its membership and its independence from the executive. A multi-stakeholder committee had been set up to prepare proposals to the Government for further reform.
Follow-up Questions by Committee Experts
SÉBASTIEN TOUZE, Committee Expert and Co-Rapporteur for Senegal, asked for additional clarifications concerning the reform of the Criminal Code, in particular the timetable for the adoption of amendments, which would bring Senegal in line with the Convention as far as the definition of torture was concerned. More detailed information about concrete cases in which acts of torture were prosecuted and sentenced was required. Mr. Touze continued to be concerned about the length of custody, which could be as long as 12 days, and about the access to fundamental safeguards for persons accused of counterterrorism. The right to a medical examination was another fundamental legal safeguard; the examination was free of charge if requested by the State but if a person deprived of liberty demanded it, he or she had to pay for it.
CLAUDE HELLER ROUASSANT, Committee Expert and Co-Rapporteur for Senegal, stressed that the current structure and the composition of the High Council of the Judiciary did not guarantee its independence – the President of the Council was the President of the Republic, while the Minister of Justice was second in line. The High Council of the Judiciary must be rethought and revised.
Other Experts asked about the concrete efforts, including the allocation of financial resources, to provide victims of torture with compensation and reparation, and explained the approach to collective reparation. They also asked whether spousal rape was criminalized; the statistics of health personnel in prisons; and the standard procedure in place for the medical examination of newly arrived prisoners, as a way to early identification of cases of torture.
Replies by the Delegation
The delegation explained that among the efforts to assist illiterate persons’ better access to justice, there were orientation offices in all court chambers whose mission was to assist people in contact with those institutions; the so-called justice houses which were located throughout the country and which aimed to assist people with their court cases; and free legal and court aid for the poor. Additionally, interpreters were available for non-French speakers in contact with the justice system.
A legal presence was assured throughout a person’s custody, even for those held on charges of terrorism.
A state exam for lawyers was held once every three years, but in 2018, there would be two such exams as a way to address the shortage of lawyers in the country. Senegal was considering changing the law to allow such exams to take place annually.
The delegation reiterated that there was no systematic use of pre-trial detention as suspects or accused were mostly not detained; detention was used if there was a risk of a suspect absconding, or when there was a threat to public order.
There were 17 members in the High Council of the Judiciary, of which 10 were ex officio. Other than the President of the Republic and the Minister of Justice, all other members were magistrates and decisions were made by the majority.
All cases of violence against women were taken up by courts, which handed down heavy sentences. There were four doctors for the 23 prison establishments, the rest were nurses.
Explaining why it took a long time to adopt bills, a delegate said that it was because those pieces of legislation were extremely delicate and complex, and not because it was a reflection of lack of political will. Whenever a law was rushed, there was a need to adopt another law to correct it – such was the case with the law against terrorism which had been adopted quickly and had had to be amended soon after, bringing about a situation in which two anti-terrorism laws had been adopted in the space of 10 years.
Very few foreigners were subject to refoulement and expulsion, which was explained by the fact that most foreigners were citizens of the Economic Community of West African States, where free circulation of people and goods was guaranteed.
In terms of the compensation of victims, there were about 40,000 victims of massive human rights violations in Chad and it was nearly impossible to deal with compensation and reparation on an individual basis. Senegal was therefore dealing with associations and organizations of victims and providing compensation to them, for distribution among their members, and this was what was meant as collective compensation.
Violence against women was not criminalized, but specific acts such as sexual violence were and courts were dealing with those specific offences. If a victim of a crime was a woman, it was an aggravation.
The retour de parquet happened when a judge wanted more time to study the case, and it was a practice very favourable for the victim. The idea was for the prosecutor to find a way not to detain the person, all the while guaranteeing that the person would appear before the judge.
COLY SECK, Permanent Representative of Senegal to the United Nations Office at Geneva, thanked the Committee for their questions and pledged Senegal’s strong commitment to the continued effective implementation of the Convention against Torture.
JENS MODVIG, Committee Chairperson, thanked the delegation of Senegal for their articulate and well-organized responses.
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