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Committee against Torture considers report of Poland

31 October 2013

Committee against Torture 

31 October 2013  

The Committee against Torture today concluded its consideration of the combined fifth and sixth periodic report of Poland on its implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Presenting the report, Wojciech Wegrzyn, Deputy Minister of Justice of Poland, said that Poland had signed the Convention for the Protection of All Persons from Enforced Disappearance earlier in 2013, while the ratification of the second Optional Protocol to the International Covenant on Civil and Political Rights was in the final stages.  He addressed allegations of the existence of CIA secret prisons in Poland, noting that an independent investigation was in progress and the Government was engaging with civil society on the issue.  Much had been done on prison reform, prison overcrowding had been reduced, as had the number of persons in pre-trial detention.  The Government had taken several measures to tackle hate crimes and racist behaviour, and to improve conditions for illegal migrants kept in guarded centres.  It had also created a National Prevention Mechanism.

Committee Experts congratulated Poland for abolishing the death penalty, which was considered an extreme form of torture.  The Committee commended Poland for signing the Convention for the Protection of All Persons from Enforced Disappearance, and for being at the forefront of protecting the rights of lesbian, gay, bisexual and transgender persons, as well as for its success in reducing overcrowding in prisons.  Allegations about CIA secret prisons in Poland were raised, as well as the use of extraordinary rendition and alleged forced confessions under torture.  The use of pre-trial detention, guarded centres for illegal migrants and the detention of child migrants, rules in psychiatric institutions, and human rights training for border guards and law enforcement officers were also discussed.

In concluding remarks, Claudio Grossman, Chairperson of the Committee, thanked the delegation and said that they could provide additional answers until the end of the following day.  Mr. Wegrzyn concluded by saying that the Government was waiting for the Committee’s recommendations and expressed hope that the delegation’s answers had cleared any doubts the Committee might have had.

The delegation of Poland included representatives of the Ministry of Justice, the General Directorate of Prisons, the Polish Office for Foreigners, the Polish Border Guard, the Prosecution General, and members of the Permanent Mission of Poland to the United Nations Office at Geneva.

The Committee is meeting in private on Friday, 1 November in the morning.  At 3 p.m., it will hear the responses of Latvia to questions raised by the Committee this morning.
The combined fifth and sixth periodic report of Poland can be read here: CAT/C/POL/5-6.
Presentation of the Report
WOJCIECH WEGRZYN, Deputy Minister of Justice of Poland, presented a number of concrete examples of how Poland was evolving its human rights protection measures.  In June this year it had signed the Convention on the Protection of All Persons from Enforced Disappearance.  The ratification of the second Optional Protocol to the International Covenant on Civil and Political Rights, which would abolish the death penalty in all circumstances, was in the final stages.  The Deputy Minister addressed the question of the alleged existence in Poland of CIA secret prisons, noting that the Government would not take any action that would interfere with the investigation being carried out by an independent prosecution authority, with which Government administrative bodies were fully cooperating.  The Polish authorities were open to a dialogue with civil society on the issue and had discussed it already with groups including Amnesty International. 
Regarding prison reform, since its last report to the Committee, Poland had sharply decreased the number of pre-trial detentions in the country by as much as 45 per cent.  The number of prisoners had been stabilized in order to tackle overcrowding in detention centres, and at present prisons were 97.2 per cent full.  That had been possible due to several new actions, including a system of electronic supervision as an alternative to incarceration in a prison.  In 2010 a new Prison Service law was passed which assured full respect for the rights of persons deprived of liberty.  In 2009 the Council of Europe and the European Commission gave the ‘The Crystal Scales of Justice’ award to the Polish Prison Service for its professional attitude and respect for human rights.  Two new definitions – of trafficking in persons and of slavery – were introduced to the Penal Code in 2010. 
To protect ‘at-risk’ groups Poland had acted upon the Committee’s recommendation and created a specialized body, the Council for the Prevention of Racial Discrimination, Xenophobia and Related Intolerance, operating since 2013 under the Council of Ministers.  Measures had also been taken to prosecute hate crimes, including specialized training for 90 prosecutors.   In 2005 Poland had ratified the Optional Protocol for the Convention against Torture, which led to the creation of the National Prevention Mechanism performed by the Ombudsman.  A free legal aid service for foreign nationals under the refugee procedure would enter into force in 2015.  The conditions of illegal migrants being kept in guarded centres had been improved and the terms of stay had been softened, thanks to resources obtained from the European Fund for the Return of Immigrants and the European Refugee Fund. 
Presentation by the Committee Rapporteurs
FERNANDO MARINO MENENDEZ, Committee Member acting as Country Rapporteur, expressed satisfaction with the large and high-ranking delegation.  Significant progress had been made in the State party on a number of issues.  Poland had been a member of the European Union for a number of years and was also a member of the Schengen visa system.  It adhered to the principle of the free circulation of people, and was part of a body of international legal instruments, such as the European Union Charter of Human Rights, among others.  There were some differences, but that was inevitable.  However, there was still no specific definition of torture in the national legislation, and that should be changed, he said.  Furthermore, when it came to prosecuting crimes of torture, sentences handed down by courts were not as heavy as they could be. 
Regarding secret prisons, including the alleged existence of CIA secret prisons in Poland, the Rapporteur said it was a difficult matter.  While he appreciated that the courts investigating the issue were independent, they also had responsibilities as they were a part of the State.  The Committee highlighted the obligation to investigate whether torture occurred in secret detention facilities on Polish soil, as it seemed that the investigations that had begun in 2008 had made very little progress over five years. 
The Rapporteur also raised the issue of confessions made under torture.  There were allegations that statements and confessions were extracted in those secret prisons under torture, confessions that were then used in third countries.  However, many of those third countries did not allow confessions obtained under torture to be used in courts, for example the ruling by a Spanish court denied the admission of any statements obtained from the Guantanamo Bay prison because they had been obtained under torture, and in compliance with the Convention against Torture, they were ruled inadmissible. 
The Rapporteur noted that the Committee was not a court, it was here to promote the eradication of torture, and wished for a friendly dialogue with the State party on the subject. 
Concerning detention, the Rapporteur asked whether all detained persons could access legal counsel within the first hour of their detention.  Pre-trial detention was another issue of concern; Poland allowed for up to two years of pre-trial detention – the decision to place an individual in pre-trial detention must always be fully justified.  
Regarding police conduct, the Rapporteur asked for information on the early intervention system that entered into force in 2010 aimed at eliminating negative phenomena in the police.  The report stated that from 2007 to the end of 2011, no compensation had been granted to people in penitentiary institutions or to victims of abuse by police officers, the Rapporteur quoted, asking whether that meant that there had been no cases of abuse during those years. 
Trafficking in persons was an offence under Polish legislation, based on the 2010 law, the Rapporteur noted.  There was also a National Plan to Combat Trafficking in Persons.  He asked whether a resident permit of limited stay and a work permit were granted to victims of trafficking.  How were trafficking networks dismantled?  What protection was given to victims – it must be clear that victims should not be punished for the activities they had been forced to take part in. 
The issue of abortion came up from time to time in the Committee, and in Poland there had been complaints from doctors that they had been denied the right to practice legal abortion, in contradiction to a ruling by the European Court of Human Rights.  Was the practice of legal abortion ‘tolerated’, and were there conscientious objectors, he asked.
The State party was congratulated for its eradication of the death penalty, which was of course an extreme form of torture.  The Rapporteur also commended Poland for signing the Convention for the Protection of All Persons from Enforced Disappearance.  The Polish Government was praised for being at the forefront of protecting the rights of lesbian, gay, bisexual and transgender persons, particularly in the European Union context.  Were there any new developments in that sphere?
There was no specific or clear definition of violence against women, although there were several categories of domestic violence, the Rapporteur said.  Was spousal violence included?  The Rapporteur also asked about refugees and their rights, for example their right to vote.  He asked about the operational systems of the ‘guarded centres’ for refugees and asylum seekers.
XUEXIAN WANG, Committee Member acting as co-Country Rapporteur, commended the State party on providing a very good report, and an excellent presentation today that was short but rich in content, and brought the Committee fully up to date on what was happening. 
The Rapporteur raised the issue of extraordinary rendition and secret prisons.  The issue was not exclusive to Poland – it had been raised in several other European countries.  Why was the investigation taking so long?  The Committee appreciated it was a sensitive issue, but the State party had obligations to speed up the investigation, and if a case was found, prosecute the perpetrators. 

Regarding overcrowding in prisons, the State party had said the capacity in prisons now exceeded occupancy, so the Committee was satisfied that it was taking measures to deal with the issue.  However, the Rapporteur said that more than 500 complaints had been made against the prison service, but only one complaint was found to be justified, which led to the prison officer in question being discharged.  Could the State party elaborate on sanctions for prison officers? 
The Rapporteur asked about the sanction of chemical castration for sex offenders, specifically the rapists of children, which was made law in 2009. 
Questions by the Committee Experts
An Expert asked whether Poland was considering acceding to the 1954 Convention on Stateless Persons and the 1961 Convention on the Prevention of Statelessness?  She also asked about reports that in some cases expulsion of foreign nationals was carried out without a judicial review. 
A Committee Expert praised the State party for its excellent report, but asked about the guarded centres for illegal migrants.  The report referred to a decision to “soften the terms of stay” - the Expert asked for information on what that meant.  She also asked whether children were still detained.  The Committee found the detention of children in those guarded centres – whether on their own or with their parents – to be absolutely unacceptable.  It was reported that children detained had no access to education, nor the adults to activities, which was detrimental to their mental health.  What role did border guards play in the guarded centres? 
An Expert asked about prison conditions, and the keeping of prisoners in cells that measured less than two square metres, which he considered to be inhuman conditions.  He cited a case before the European Court of Human Rights of a prisoner kept for three years, until 2008, in a cell measuring 1.1 square metres, which was definitely very cruel treatment.  However, since prison overcrowding in Poland no longer existed, and the European Commission had recommendations for the minimum space for prisoners, how were Polish authorities working to give more space to prisoners, which the Committee recommended should not be less than four square metres per person. 
Had there been instances of violence among prisoners, and if so what was being done to prevent it?  The Committee understood the courts refused to examine a complaint from a prison detainee if that complaint was not properly drafted or was insufficiently detailed, so how could prison detainees submit their complaint?  Were there investigations into cases of suicide and deaths in prisons, and were any of the cases related to ill treatment or torture, an Expert asked. 
An Expert raised the issue of ‘hazing’ in the military, which in the past had led to severe injuries, including broken bones.  She noted that the report said the phenomena of hazing was now a thing of the past because of the professionalization of the military corps, and the Committee would welcome the State party’s insights and lessons learned. 
Psychiatric care, closed psychiatric wards in prisons and psychiatric institutions were raised by an Expert.  He asked how they were legislated and about practices such as involuntary restraint of prisoners.  For example, prisoners who did not have mental illness but may, for example, be drug addicts, had reportedly been subjected to means of restraint – including mechanical restraints in security cells – for long periods of time.
Questions were asked about redress and compensation for victims of acts of violence, with an Expert commenting that for the last five years, since 2010, no definitive rulings had been handed down to grant financial compensation.  In his opinion those five years constituted an unreasonable delay. 
On pre-trial detention, an Expert recalled that the Universal Periodic Review recommended that Poland grant non-extendable terms for pre-trial detention not exceeding two years.  How was the State party implementing that recommendation?
Amnesty International reported that over 60 Roma people living in an informal settlement in western Poland faced forced eviction, with 40 days to vacate the area, an Expert said.  Could the State party clarify the details of that allegation? 

What was the position of Poland on extradition, particularly on whether diplomatic assurances could be used as an instrument to alter reassurances regarding non refoulement.  The State party had signed the Convention on Enforced Disappearance earlier this year, what was the timeframe for ratification? 
A 2010 law allowed for border guards to use electrical stunning devices.  Did that refer to Taser Guns?  The Committee was concerned about the use of those weapons, especially following a case in Canada where a border guard shot a person dead using a Taser Gun.  Had any complaints been made against the conduct of border guards?  How were border guards trained, and were civil society members involved in their training? 
Regarding excessive use of force by law enforcement authorities, an Expert said human rights defenders had expressed concern about frequent cases of unlawful action by prison officers that could be classified as degrading, and in some extreme cases, as torture.  The Ombudsman had taken up an investigation into those very serious allegations – two years on, what were the results?   Raising two other cases, an Expert asked about a case in May 2011 when a police officer shot and killed a Nigerian man in a marketplace, allegedly in a dispute over market licences.  An investigation was taken up into excessive use of force and other allegations - what were the results?  He also asked about the outcome of an investigation into an assault by a police officer against an anti-fascist demonstrator.   
Responses by the Delegation
WOJCIECH WEGRZYN, Deputy Minister of Justice of Poland and Head of the Delegation, noted that the death of the former Polish President Tadeusz Mazowiecki earlier this week was a great loss for the global human rights community, and expressed thanks for the condolences voiced by the Committee. 
Poland was cooperating with the European Court of Human Rights regarding the alleged CIA prisons on its territory.  The Government had been constantly expressing its readiness to cooperate with international bodies on this issue.  In 2012, the Prosecutor General had referred the case to an appellate prosecution in Krakow.  The participation in the case of professional attorneys had been followed by filing of all relevant evidence and documentation.
Poland had cooperated with a large number of international bodies throughout the investigation.  The investigators had focused on supplementary hearings for these who had already been involved in the case, hearing a total of 62 persons.  Given the gravity of actions under investigation, the statute of limitations ought not to hamper the hearings.
Regarding the inhuman treatment of persons deprived of liberty, in October 2012, the Prosecutor General had filed notifications with heads of police and prison services on irregularities mentioned in the recent report of the European Committee for the Prevention of Torture.  The Prosecutor was conducting investigations and could ask the police to conduct parts of the investigation.
Poland did not criminalize torture as a separate crime, but there were provisions in the Penal Code for associated offenses.  It had to be stressed that any statements made under duress could not be used as evidence in a court of law.  Any abuse of power by a State official was punishable under the law.  There were no cases of torture as defined under the Convention against Torture which would not be considered a crime under Polish legislation.
With regard to reproductive rights and abortion, under Polish law, a patient had the right to appeal against an opinion of a physician to the Physicians’ Committee operating at the Ombudsman for Patient Rights.  A woman who had been unlawfully refused an abortion might claim compensation and redress from hospitals and individual physicians.
Regarding the rights of lesbian, gay, bisexual and transgender persons, criminal law could be used when it came to discrimination, and discriminatory grounds were regarded as an aggravating circumstance.  It was an offense to publicly instigate hatred or to publicly disgrace individuals or groups on grounds of national, ethnic, racial or any other identity. 
Poland had ratified the United Nations Convention on the Rights of Persons with Disabilities and was finalizing work aiming at the ratification of the Council of Europe Convention on the prevention of violence against women and domestic violence.
The State Treasury was represented by its individual units in cases related to compensation.  Compensation might be awarded to victims of torture also in criminal proceedings, and the procedure was as informal as possible and free from fees.
Poland did not intend to sign or accede to the United Nations International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.
Recommendations of the National Prevention Mechanism were carefully analyzed by the Government, and in implementing the recommendations, legislative work had been initiated to allow persons under pre-trial detention to use a telephone.  An amendment had also been introduced to the law on procedure in cases involving minors.  The Ombudsman also monitored the protection of the rights of persons with mental disorders, and a special Ombudsman for Children existed.
Regarding hazing in the armed forces, the Polish Armed Forces had been reformed in 2010-2011, and general conscription had been suspended in 2010.  There had been steps at all levels to promote ethical rules of service as stipulated for in the Code of Honour of Professional Polish Military, and training had been addressed by commanders at different levels to develop commanding skills, social competencies and leadership.  No complaints on hazing had been reported between 2011 and July 2013. 
The activities of the Council against Racial Discrimination, Xenophobia and Related Intolerance focused on four areas: monitoring, connected with the development of an integrated monitoring system; response, taking up actions to prevent negative phenomena resulting from racism or xenophobia; service, supporting minorities and institutions; and education in a broad sense, which also covered programmes co-financed by external entities.
In 2013, the Code of Criminal Procedures had been amended to restrict the terms of the application of temporary arrest and shorten the appeal procedure on the use of preventive measures.  The number of temporary arrests and the number of court decisions to arrest suspects had been decreasing.  The decrease in the number of pre-trial detentions was connected with the consistently high level of use of less restrictive preventive measures. 
There existed provisions to consider motions, complaints and requests of inmates of correctional facilities and pre-trial detention.  The regulations stipulated that the allegations presented in the complaints were examined in the explanatory process, during which the necessary documents were collected.  If an extended period had passed since the incident, the medical file of a complaint was thoroughly examined.  The communication with an attorney regardless of its form was not controlled by officers, and telephone conversations of convicted persons with their attorneys were not listened to.
When it came to overcrowding of prisons, as of September 2013, prison capacities had been filled up to 97 per cent.  There was computer software in place enabling immediate online analysis of the population status of all the facilities.  Currently, more than 5,000 persons were enrolled in the system  of electronic supervision.  Other legislative actions were being taken to decrease the prison population, such as decriminalization of certain offenses and the more frequent use of sanctions without deprivation of liberty.
Dangerous inmates was a category that was subject to a special control by the prison service; the number of such inmates was decreasing, while rehabilitation efforts were offered to them.  Most frequent forms of violence were brawls and assaults, and the Prison Service had carried out a number of actions to prevent aggressive behaviour among prisoners.
The number of suicides among prisoners had dropped significantly over the past several years.   All recent cases of suicide had been caused by external circumstances, such as the disintegration of the family, while a high number of suicides had been prevented by prison officers.  Psychiatric wards existed in a number of Polish prisons, which were mainly used for psychiatric observation of detainees at the stage of preliminary proceedings.  The so-called “chemical castration” might be an element of treatment of persons, who, after they had served the sentence, were referred to therapy in specialized institutions.

Full health care, outpatient service, Polish language classes and school materials were provided to foreigners who applied for refugee status.  A foreigner who received a refugee status was granted a year-long integration assistance, and they had a work permit, free health care, the right to education  and a so-called Geneva Passport.  Persons who were not Polish did not have the right to vote.  Foreigners were informed in the language they knew when filling the application and were provided information in centres.
Currently, the Polish law provided for an equal status of foreigners and stateless persons.  A dialogue had started on Poland joining both conventions on statelessness.  A draft law on aliens was being considered by Parliament at the moment, and Poland was making every effort to make free legal aid available to foreigners.  Tolerated stay permits would be withdrawn when the identity of the foreigner was established. 
A foreigner could not be expelled until the return procedure was completed.  The draft law on aliens stipulated for a new provision which would suspend the procedure of expulsion at the moment of the submission of the complaint until the courts issued a relevant decision. 
Unaccompanied minors and families with children were placed in detention as a last resort for as short a period as possible.  Foreigners who were alleged victims of trafficking had the right to apply for resident permits for a period of three months.  The Border Guard would notify the Ministry of Interior, which would in turn notify the police and the prosecutor’s office.  Polish Criminal Code provided for the possibility of not imposing penalties on victims of trafficking for their involvement in unlawful activities, to the extent that they had been compelled to do so. 
Poland did not perceive so-called “diplomatic assurances” as a measure sufficient to ensure the rights of an extradited person, and it was always up to the court to decide on the admissibility of an extradition. 
The penalty of military disciplinary detention had not existed since 2010, and only the court could decide on detention of a serviceman and only when it was necessary for conducting criminal proceedings.
At the moment of detention, detainees were informed about their rights.  The presence of a police officer during a client-lawyer communication would be limited, and telephone tapping and other means of electronic surveillance were strictly regulated.
The use of taser guns had declined, but they would remain in use, as they were considered less harmful than firearms.  An early intervention system was being developed with the view of responding to the smallest irregularities in police activity to guarantee that mistakes were not repeated.
Penal provisions were very strict when it came to the punishment of perpetrators of domestic violence.  Police officers had checklists to identify domestic violence cases. 
There were around 30-50 reported cases annually of human rights violations by the police forces, which numbered 100,000 officers.  The objective of training of law enforcement officers was to reduce the number of abuses. 
Questions by the Experts
FERNANDO MARIÑO MENENDEZ, Committee Expert and Rapporteur for the report of Poland, referred to the definition of torture.  Was abuse of power by State officials considered cruel treatment or torture?  Could a detainee choose a doctor, or was a doctor imposed on him?
What kind of results had there been so far of the early warning system, dealing with police irregularities? 
Was domestic violence as such defined in the Criminal Code, Mr. Marino Menendez asked. 
Who would call under the category of ethnic minorities, and were they different from national minorities?  Were they requiring special protection?
XUEXIAN WANG, Committee Expert and Co-Rapporteur for the report of Poland, commended the delegation’s detailed and comprehensive responses.  He raised the use of taser guns as the Committee objected to their use.  Taser guns and firearms should not be placed in the same category.  How many people had been killed or severely wounded by police using firearms in 2012?
The Committee was against the punishment of chemical castration – what were the details of its use in Poland?
The Committee encouraged the State party to ratify the two conventions on statelessness.
Was there a strategy to overcome shortcomings of the judicial system with the view of making it more efficient, another Expert asked.
In certain situations, according to current regulations in Poland, prisoners could be put in cells smaller than three square meters, for as long as 28 days.  An Expert asked what Poland was doing now to change the existing situation, while keeping in mind that four square meters were a minimum European standard.
Another Expert asked what exactly constituted an independent prosecution authority which was looking into the alleged cases of torture.
Could more details be provided about the funds available to the office of the Ombudsman?
While people who had been tortured might be entitled to reparations, it would be good to know how many among them had been provided with rehabilitation in the wide meaning of the term?
Was there a plan to ensure that the lawyer-client privilege was better protected, another Expert inquired. 
The Expert asked why Latvia would not adopt one single definition of torture, in accordance with the Convention.
Responses by the delegation
Responding to these questions and comments and others, the delegation said that psychiatric inmates were placed in hospital wards, which existed in six prison facilities.  Inmates could refuse pharmaceutical treatment and could appeal to another instance, such as the Ombudsman or the chamber of physicians.
The so-called “chemical castration” referred to pharmaceuticals used to decrease sexual drive.  Cognitive and behavioural treatment, along with psychotherapy were preferred options, and chemical castration could be applied only if the person agreed.
In the Executive Penal Code, the minimum space per inmate was three square meters, and two meters for short periods of time - 14 days, which could be extended up to 28 days.
Every case of suicidal death in prisons was investigated by the prosecutors’ service.
Full confidentiality was ensured for prisoners, and prison officers were never present during client-lawyer sessions. 
Disciplinary measures for prisoner officers who violated prisoners’ rights were dismissal of officers from service, warning conversations, reprimands and financial measures.  The strictest punishment for police officers was dismissal from service.
The detention of the person who committed an offense was 48 hours and could be extended by a court to 72 hours.  A physician was assigned to the detainee ex officio, and detainees could always get their preferred physicians.
The system of early intervention was meant to prevent crimes by police officers.  Police forces had an internal code of conduct and in-house regulations. 
Around one million offenses were committed in Poland annually, which made it impossible to record all confessions; instead, there were monitoring facilities which were following interventions in real time.
A taser gun used by the police had cameras included, which could serve as a subsequent proof on whether brutality had been applied.  The use of firearms by the police had also been curtailed, and the number was very low for 2012.
The Polish law defined it very clearly that when a request for refugee status was refused to a foreigner, immediately additional protection in the form of a permit for tolerated stay was extended.  In 2012, some 200 persons had been granted tolerated stay. 
Informational brochures for foreigners had been translated into more than 15 languages, and interpreters were widely available.  Education was provided for all minors, including Polish language courses in the beginning when needed.
Wrongful arrest in Poland meant that a person should not have been arrested in the first place.  Millions of euros had been paid in recent years as reparations for wrongful arrests.
The difference between national and ethnic minorities was defined in line with the framework convention of the Council of Europe.  There were nine national and four ethnic minorities in Poland.
Concluding Remarks
CLAUDIO GROSSMAN, Chairperson of the Committee, thanked the delegation and said that they could provide additional answers until the end of the following day.
WOJCIECH WEGRZYN, Deputy Minister of Justice of Poland, said that the Government was waiting for the Committee’s recommendations and expressed hope that the delegation’s answers had cleared any doubts that the Committee might have had.


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