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20 November 2000

25th session
20 November 2000

Continues Review of Report of Canada

The Committee against Torture issued conclusions and recommendations this afternoon on a third periodic report of Belarus, citing concern over what it called a deterioration in the country's human-rights situation and "numerous continuing allegations of torture and other inhumane treatment or punishment" committed by State officials or with their acquiescence. It said such violations particularly appeared to have been committed against political opponents of the Government and peaceful demonstrators, and included disappearances and beatings.

The Committee called, among other things, for establishment of an independent complaints mechanism to look into torture allegations; said the Government of Belarus should consider establishing an independent and impartial national human rights commission with effective powers to investigate complaints; and recommended that measures be taken to establish independence of the judiciary and lawyers.

The Committee also called, as it has with many other countries, for Belarus to amend its domestic penal law to include the crime of torture as defined in article 1 of the Convention against Torture.

The Committee, a panel of 10 independent Experts, cited as positive that Belarus had decided to withdraw its reservation to article 20 of the Convention and that the Government had cooperated with United Nations treaty bodies and other human-rights mechanisms.

Alexander Ivanovsky, Deputy Attorney-General of Belarus, said the facts mentioned by the Committee should be genuine; if it said judges and lawyers were not independent, for example, it should prove that, and the Government did not feel the Committee had done so. If the Government of Belarus was going to publish the Committee's conclusions and recommendations in the press, as called for by the Committee, it should be utterly apparent that the Committee's conclusions were factually accurate, Mr. Ivanovsky said.

Belarus, as one of the 123 States parties to the Convention against Torture, is required to submit periodic reports to the Committee on efforts to implement the treaty.

The Committee also carried on this afternoon with a review of a third periodic report of Canada, hearing responses from a Government delegation to questions posed on Friday. The delegation said, among other things, that torture was a specific offence under the Criminal Code of Canada, punishable by a prison term of up to 14 years; that the Canadian military not only allowed its members to refuse to obey an unlawful command but required them to report any human-rights violations they witnessed; and that extensive reforms had been made to the women's prison system.

Conclusions and recommendations on the report of Canada will be issued at the Committee's afternoon meeting on Wednesday, 22 November.

The Committee will reconvene at 10 a.m. on Tuesday, 21 November, to begin discussion of a third periodic report of Guatemala.

Conclusions and recommendations on third periodic report of Belarus

The Committee cited among positive developments news that Belarus had decided to withdraw its reservation to article 20 of the Convention; that the Government had cooperated with United Nations treaty bodies and other human-rights mechanisms, particularly in permitting visits of the Special Rapporteur on freedom of expression and the Special Rapporteur on Independence of the Judiciary; and that Belarus had decided to accede to the 1951 Refugee Convention.

The Committee cited concern, among other things:

-- that the human-rights situation had deteriorated since the last report of Belarus to the Committee in 1992, including persistent abrogations of the right to freedom of expression and of the right to freedom of assembly;

-- that there were numerous continuing allegations of torture and other inhumane treatment or punishment committed by officials of the State party or with their acquiescence, particularly affecting political opponents of the Government and peaceful demonstrators, and including disappearances, beatings, and other actions in breach of the Convention;

-- that there was a lack of an independent procuracy, particularly as the Procurator had the competence to exercise oversight on the extension of the duration of pre-trial detention, which could be for up to 18 months;

-- that there was a pattern of failure to conduct prompt, impartial and full investigations into the many allegations of torture reported to the authorities, as well as a failure to prosecute alleged perpetrators;

-- that there was a lack of an independent judiciary, with the President maintaining the sole power to appoint and dismiss from office most judges, who must also pass through a probationary initial term, and whose tenure lacked independent safeguards;

-- that Presidential Decree No. 12 restricted the independence of lawyers, subordinating them to the control of the Ministry of Justice, by introducing obligatory membership in a state-controlled Collegium of Advocates;

-- and that there was continuing use of the death penalty, along with inadequate procedures for appeals, lack of transparency about those being held on death row, and the reported refusal to return the bodies of those executed to their relatives, thus inhibiting any investigation into charges of torture or ill-treatment of them in prisons.

The Committee recommended

-- that Belarus amend its domestic penal law to include the crime of torture as defined in article 1 of the Convention, supported by an adequate penalty;

-- that urgent and effective steps be taken to establish a fully independent complaints mechanism to ensure prompt, impartial, and full investigations into the many allegations of torture reported to the authorities, and the prosecution and punishment, where appropriate, of the alleged perpetrators;

-- that the State party consider establishing an independent and impartial Governmental and non-governmental national human rights commission with effective powers to investigate all complaints of human-rights violations;

-- that measures be taken, including review of the Constitution, laws, and decrees, to establish independence of the judiciary and lawyers;

-- that efforts be made to improve conditions in prisons and pre-trial detention centres and that a system be established allowing for inspections of prisons and detention centres by credible impartial monitors, whose findings should be made public;

-- that the Government provide independent judicial oversight of the period and conditions of pre-trial detention;

-- and that the State party consider making the appropriate declarations under articles 21 and 22 of the Convention.

Discussion of third periodic report of Canada

The Canadian delegation, responding to questions posed by Committee members at a meeting on Friday, said, among other things, that the Canadian Charter of Rights and Freedoms was part of the Constitution, which was the supreme law of Canada, and that any law inconsistent with it had no force or effect. Any law challenged on Constitutional grounds and found to be in contravention was of no force or effect. Section 12 of the Charter of Rights and Freedoms said everyone had the right not to be subjected to any cruel and unusual treatment or punishment. It did not specifically use the word "torture", but as torture was an aggravated form of mistreatment, it prohibited torture. In addition, torture was a specific offence under the Criminal Code of Canada, punishable by a prison term of up to 14 years.

Under the new Crimes against Humanity and War Crimes Act, the delegation said, an order to commit genocide or crimes against humanity was manifestly unlawful, and the defence of "superior orders" was not available.

In relation to court martials based on incidents during deployment of Canadian forces in Somalia, the delegation said the relevant commanding officer in fact had been charged with negligent performance of a military duty arising from orders he gave which altered the rules of engagement pertaining to looters; however, there was no direct connection found between those orders and the death of the Somali victim, and after a full and impartial investigation and legal process, the commanding officer was acquitted -- twice -- on these charges. The defence of "superior orders" had not been invoked in relation to the Somalia prosecutions and therefore had no relevance to the case. Another result of the incident had been a recommendation that "formal criteria be adopted for accountability of leaders in the Canadian Forces". In 1997, the Canadian Forces adopted a Code of Conduct which provided explicit instructions on respect for the Convention against Torture. There also were training measures in place to ensure that Canadian Forces did not commit and could recognize torture or inhuman treatment or excessive use of force when it occurred. The Canadian Forces not only allowed its members to refuse to obey an unlawful command but required them to report any human-rights violations they witnessed.

A number of complaints about police conduct during demonstrations during an Asia-Pacific Economic Cooperation Conference (APEC) held in Vancouver, including allegations about the force involved, including use of pepper spray, dog handling, and physical force, had resulted in a public-interest investigation and a public hearing, the delegation said; the Chairman of the inquiry was expected to submit his report by the end of the year.

A large-scale fishery enforcement action on 29 August 2000 involving the seizure of unauthorized lobster traps had resulted in complaints that excessive force might have been used against Aboriginals, the delegation said; the Royal Canadian Mounted Police (RCMP) was reviewing the incident. Officers had used pepper spray against two individuals, and there was a collision between vessels which appeared to have been an accident. The fisheries officers were trained extensively in the use of force and in the use of such enforcement tools as batons and pepper spray; every effort was made to avoid confrontation. Fisheries officers received 14 hours of training in multiculturalism mainly dealing with issues related to Aboriginal rights.

The delegation said the RCMP was carrying out an ongoing, intensive police investigation into actions by the municipal police force of Saskatoon, Saskatchewan, into circumstances leading to the deaths of two Aboriginal men and related allegations that members of the Saskatoon police had engaged in the practice of transporting and abandoning individuals at the outskirts of the city; in total, the deaths of four men were being investigated; so far, the investigation had led to charges being filed against two police officers for unlawful confinement and assault, and both officers had been committed to stand trial.

The Government of Canada had acknowledged particular responsibilities for tragic physical and sexual abuse of Aboriginal children in many residential schools, the delegation said; it had committed $350 million to develop the independently run Aboriginal Healing Foundation to support healing initiatives for individuals, families, and communities dealing with the legacy of abuse in residential schools. The Government was committed to resolving liabilities for claims of those who suffered abuse; its preference was to resolve these claims outside the courtroom; the Government did not consider it useful at this point to carry out a public inquiry, and thought it would be very difficult to ensure that survivors were not re-victimized or traumatized by such a process.

It was not possible to confirm if 20 persons rejected for asylum on suspicion that they had committed unacceptable acts such as torture would be brought to trial on charges of torture or crimes against humanity, the delegation said, although their dossiers had been studied to see if charges should be brought; the matter was continuing; it was not possible to say if all the cases were still under investigation.

The removal of serious criminals and terrorists to countries where they could face torture was a difficult question which was expected to be taken up by the Supreme Court of Canada next year, the delegation said. Under current procedure a risk assessment was made in all cases where it was alleged that someone might face torture upon removal, and Canada had never deported anyone where there were substantial grounds that he would be subjected to torture.

Canada agreed with the principle that formal interim measures should be respected, so as not to deprive the Committee of its jurisdiction over communications made under the Convention, the delegation said, and in practice Canada had complied with these requests in all but one case. In that one instance, the Minister of Citizenship and Immigration carefully considered the potential risk to public safety posed by the individual's presence in Canada against the possible risk of torture he faced upon return, and concluded that there was no substantial risk of torture.

Government policy mandated that removals from Canada be carried out in an orderly and humane manner to ensure the safety of the individual involved, any escorting officers, the flight crew, and other airplane passengers, the delegation said; some individuals caused disturbances at the time they boarded their flights; standards had been set for the restraint of such individuals; use of restraining devices was permissible when there was no other way for officers to safely and securely carry out a removal. Force used with restraining devices must not exceed the amount needed to control an individual's behaviour. Protective headgear may be used if necessary to prevent individuals from hurting themselves. Gagging was not permitted. In rare cases when a sedative had to be administered, a court had to concur and the sedative was administered by a medical doctor, who then had to accompany the individual during the removal. The services of a private firm had been used three times to assist with difficult removal cases to Africa; a detailed assessment was made beforehand of the firm's procedures and practices and the firm agreed to operate in keeping with Canadian law and international law. Complaints in relation to removals could be submitted at any level of the Department of Citizenship and Immigration.

Thirteen minors between the ages of 15 and 18 had been arrested in southern Ontario in January and February 2000 after a failed attempt to smuggle them into the United States, the delegation said; it was believed that the minors were being smuggled to be used in the sex trade in the United States; the minors made refugee claims and were detained as flight risks; all had since been released. Detention of minors was used only as a last resort, but in some circumstances detention of unaccompanied minors could be warranted; the minors in Ontario were held in an immigration detention facility, separate from adult detainees, and had been provided with extensive care and appropriate resources.

Immigration officials received ongoing training in understanding signs of torture and in effective interpersonal communications, the delegation said.

Considerable efforts had been made to improve the situation of federally sentenced women in Canada, the delegation said; five new smaller institutions for women had been built and a more equitable and appropriate correctional regime had been established. Following several escape attempts in 1996, the Correctional Service determined that a small portion of women offenders required a greater degree of structure and control, due to their high escape risk, destructive behaviour, and risk to the public; within the group were several who required intensive treatment for mental-health disorders. The Correctional Service had decided to incarcerate these maximum-security women in small units in men's institutions, where they were kept wholly separate from the male population; women offenders requiring long-term mental-health treatment were given the opportunity to transfer to a mental health unit at a Regional Psychiatric Center. Modifications in the women's prisons would soon allow the small units in men's institutions to be closed. Since 1996, the number of women inmates classified as maximum security had decreased significantly. Physical restraints were required during transport of medium-security women inmates; and if a minimum- and medium-security offender were moved at the same time in the same vehicle, both had to be restrained; after such a case in 1997, the relevant prison officials had directed that minimum-security offenders should normally be moved separately. No cage was used in the incident. Strip searching of women offenders by male staff was prohibited, although such searching was allowed in exceptional emergency circumstances; a review had not found any situations where that had occurred; moreover, it had been ruled that in no case would males participate in strip searching of women in federally sentenced women's facilities.

Every effort was made to provide prevention and effective treatment for offenders with substance abuse problems, while at the same time taking appropriate measures to restrict the entry and use of drugs and alcohol within prisons, the delegation said. Offenders requiring special interventions for mental disorders were treated through sound and comprehensive therapeutic approaches, with medications administered according to the mental-health needs of the inmate. Psychotropic medications were not used as a security measure. The Correctional Service recognized that it had further work to do and would continue to evolve, do research and share information and best practices with colleagues around the world.

Aboriginals were over represented in the criminal-justice system, it was true, the delegation said, and this was a matter of extensive concern, with numerous steps taken to address it; among other things an aboriginal service had been established within the correctional system; no one pretended that the problem had been sufficiently tackled.

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