Committee against Torture begins examination of Report of Monaco

Committee against Torture
MORNING

20 May 2011

The Committee against Torture this morning began its consideration of the combined fourth and fifth periodic report submitted by Monaco on its implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Introducing the report, Philippe Narmino, Director of Judicial Services of Monaco, noted that since the previous reporting period, no act of torture was brought to the knowledge of the administration and no complaints of torture were recorded by the Monegasque authorities. Mr. Narmino highlighted new legislation, the Justice and Freedom Law, which addressed pretrial detention and custody in the Criminal Code, bringing it into conformity with international standards. A draft law to combat and prevent violent crimes against particularly vulnerable victims such as women, children and disabled persons was being considered; it would introduce rules to prevent such crimes and strengthen sanctions against them. Mr. Narmino said the sanction of banishment had never been implemented and would soon be repealed and there was a recent vote in May 2011 which approved the Law for Legal Aid and Compensation for Lawyers to provide financial aid for defenders without sufficient resources to care for their defense. Current negotiations were ongoing with French authorities to institute visiting rights by a judge from the Principality of Monaco for persons sent from Monaco to French prisons.

Essadia Belmir, the Committee Expert serving as Rapporteur for the report of Monaco, encouraged Monaco to reconsider its position concerning Article 1 of the Convention and introduce the definition of torture into the Constitution. She suggested there should be an amendment to domestic legislation to prohibit public officials from invoking torture under special circumstances. Concerning Article 3 of the Convention, the Rapporteur asked the State party to indicate whether the measures they had taken forbade the extradition of people to States where they could be the victims of torture.

Abdoulaye Gaye, the Committee Expert serving as Co-Rapporteur for the report of Monaco, acknowledged the significant legislative progress that had been made in the areas of violence against vulnerable persons, the provision of legal aid and the monitoring of detainees in French detention. The Co-Rapporteur asked the State party’s intention and impediments to ratifying the Rome Statute and encouraged Monaco to ratify the Optional Protocol to the Convention against Torture. The Co-Rapporteur asked the delegation to explain why there was a distinction between a defense lawyer and those that work in the Court of Appeal and what was the maximum length of remand detention as there was only a reference to a reasonable period of time.

Committee Experts raised a number of issues concerning the maximum time limit for pre-detention, the lack of civil society organizations in Monaco, the mandate to deal with complaints submitted to the Human Rights Unit, the ability of individuals not domiciled in Monaco, either refugees or those on a temporary visit, to utilize judicial remedies to protect human rights and for an update on the negotiations to permit monitoring by Monaco authorities of individuals sent to French prisons.

The Monegasque delegation included representatives from the Permanent Mission of Monaco to the United Nations Office at Geneva, the Judicial Services, and the Ministry of Foreign Affairs.

At the beginning of the meeting, the Committee’s 1,000th, Ms. Belmir spoke about the Committee’s 23 years of work. She paid homage to all members who had served on the Committee and noted that since 1988, 280 reports presented by 116 countries had been examined. Unfortunately, 31 out of the 147 Member States to the Convention had not presented their initial report. The Committee had also considered 300 individual complaints. The Committee was presently preparing its third General Comment on Article 14 of the Convention on the right of victims of torture to reparations.

The Committee will meet at 3 p.m. this afternoon when it will hear the response of Mauritius to questions raised on Thursday, 19 May. The Committee will hear the response of Monaco to the questions raised this morning on Monday, 23 May, starting at 3 p.m.

Report of Monaco

According to the combined fourth and fifth periodic report of Monaco (CAT/C/MCO/4-5), the provisions of the Convention against Torture form part of Monegasque law and may be directly invoked by a judge and require no implementing measures in the form of domestic laws. Criminal penalties for the unlawful arrest or illegal confinement of persons are provided for by the Code of Criminal Procedure and any person who arrests, detains or confines an individual without being ordered to do so by the proper authorities, other than in cases in which the law orders the arrest of the suspect, is liable to 10 to 20 years’ imprisonment.

The Human Rights Unit, set up in the Department of Foreign Affairs, has many duties related to the promotion of human rights including examining all bills drafted by the Government from the viewpoint of human rights principles; conducting training and awareness programmes on human rights for judges, police officers and students; and helping draft the national reports requested by international human rights bodies and replies to their questions.

The Convention on Good-Neighbourliness between France and Monaco signed in 1963 provides that persons sentenced to imprisonment for crimes under ordinary law shall be held in penal institutions in France where they shall be subject to the system applied in these institutions, in accordance with the provisions of the Code of Criminal Procedure. Minors in respect of whom a rehabilitation order has been handed down shall be admitted to French reform centres. Negotiations will soon be opened between the relevant authorities of France and Monaco to establish an agreement enabling a representative of the Monegasque judicial authority to visit and monitor conditions in French penal institutions.

Monaco has only one short-stay prison, where each year about 30 detainees on average serve short sentences. With regard to minors in conflict with the law, the short-stay prison in Monaco is equipped to hold minors in detention (mostly detention pending investigation or trial). Fewer than 10 minors per year are imprisoned there, for an average stay of less than 28 days.

The granting of refugee status in Monaco is subject to approval by the French Office for the Protection of Refugees and Stateless Persons under agreements between Monaco and France on the movement and settlement of people. It is possible to appeal before the appropriate French courts against a refusal to grant refugee status.

Persons may be returned or expelled only to France, which has signed and ratified the Convention and therefore has put in place the domestic legal safeguards required under the Convention. It is possible to appeal to the Supreme Court against return (refoulement) and expulsion orders, which are administrative decisions adopted by the Minister of State. The court has made one ruling on an expulsion and 16 on cases of refoulement since 2002.

Introduction of the Report

PHILIPPE NARMINO, Director of Judicial Services of Monaco, congratulated the Committee on this special day, which marked the 1,000th meeting of the Committee and explained that his title was equivalent to Attorney General and that the Department of Judiciary Services was not a part of the executive power in the Principality of Monaco. Mr. Narmino said that since the previous reporting period, no act of torture had been brought to the knowledge of the administration and no complaint of torture was recorded by the Monegasque authorities. Since 1962, a prohibition against the death penalty and cruel, inhuman or degrading treatment was enshrined in the Constitution. Mr. Narmino highlighted new legislation, including Law No. 1343, Justice and Freedom, which brought certain amendments in pretrial detention and custody into the Criminal Code to bring it into conformity with international standards. However, recent decisions handed down by the European Human Rights Court would require review of these provisions. Reinforcing the sanction of crimes and sanctions against children would modify the time limit for legal proceedings and the penalties.

Mr. Narmino noted the project for draft law 869 to combat and prevent violent crimes against particularly vulnerable victims such as women, children and disabled persons. This would introduce rules to prevent these crimes and to sanction them. However, amending the law and administrative and judicial practices to international rules should be done in light of the specific conditions of the domestic law of Monaco. The Committee noted concern regarding the sanction of banishment and individuals transferred to French facilities to serve part or all of their legal term. He said the sanction of banishment was never implemented and there was an intention to remove it from the Criminal Code. This repeal procedure was almost complete. In addition, there was a recent vote in May 2011 which approved the Law for Legal Aid and Compensation of Lawyers which would provide financial aid for defenders without sufficient resources to care for their defense. The judicial authority had undertaken with the French authority, negotiations to jointly ascertain modalities providing visiting rights of detained persons by a judge from the Principality of Monaco to French prisons, which should be completed in the course of the next few months.

Questions by Committee Experts

ESSADIA BELMIR, the Committee Expert Serving as Rapporteur for the Report of Monaco, asked Monaco to reconsider its position concerning Article 1 of the Convention by introducing the definition of torture into the Constitution. The Committee asked the State party to amend their domestic legislation to prohibit public officials from invoking torture under special circumstances as there was no legislative provision in the domestic law or recourse. The Committee expressed concern that if a public official received an order from a superior to invoke torture due to special circumstances that there would be no legal protection for a public official and therefore the situation required clarification.

Concerning Article 3, the Committee asked the State party to indicate whether the measures they had taken forbade the extradition of people to States where they could be the victims of torture. Extradition could only occur to France, which had ratified the Convention against Torture, and the Committee was concerned that an appeal would only apply if the State asked for it.

The status of refugees in Monaco was subordinate to the French Office for the Protection of Refugees and Stateless Persons under agreements between Monaco and France on the movement and settlement of people. Monaco emphasized that it could not take a unilateral decision, so the Rapporteur asked what would happen when a person was extradited to a third country. The statistics presented on extradition were not disaggregated, with only France mentioned.

The Rapporteur noted that the State party confirmed it was possible to conduct proceedings against persons who committed acts of torture outside of Monaco. The Rapporteur raised concerns about the application of universal jurisdiction to a country like the Principality of Monaco which faced numerous constraints due to its relation with another country.

ABDOULAYE GAYE, the Committee Expert Serving as Co-Rapporteur for the Report of Monaco, said significant legislative progress had been made in the areas of violence against vulnerable persons, the provision of legal aid and the monitoring of detainees in French detention with a focus on reintegration into civil society at the end of their jail term. The Co-Rapporteur made a general comment that concerning the definition of torture the State party was obligated to ensure that the act of torture would not go against its criminal code and at the level of national law a sanction had to be stipulated because the Convention could not do it.

Concerning training, there was no information on the training of medical staff which would eventually discover indications of torture and therefore they needed skills in this area as provided by training in the Istanbul Protocol procedures.

Could the delegation explain why there was a distinction in the report made between a defense lawyer and those that worked in the Court of Appeal? Concerning those detained, it was stated that a judge would determine a doctor for a detained person, why couldn’t individuals decide who their doctor could be. What was the maximum length of remand detention as there was only a reference to a reasonable period of time.

The regulation of registries in police premises was a classic requirement and the State party should be in a position to provide information to the Committee on this issue. The Co-Rapporteur said information was incomplete concerning the possibility to transfer a detainee to a country other than France who would want to carry out the sentence in their country of origin. Could the offense of the abuse of authority be sufficient and used for cases of torture? No medical information was provided about medical support to victims of torture and their families. There was incomplete information on the measures taken to prohibit corporal punishment in the family.

It had been three years since Monaco signed the Rome Convention, what was the State party’s intention and impediments to ratifying the Rome Statute? Concerning the Optional Protocol, the State party indicated that because of the small size of Monaco and the limited number of detainees, it was not necessary to accede to the Optional Protocol, however the Co-Rapporteur said there would be progress with positive contributions to detainees from ratification of the Optional Protocol. The Co-Rapporteur asked for more information on the 10 minors detained in Monaco and said that experience showed it was better to establish a single organization to promote human rights, monitor prisons and investigate allegations of torture than a variety of bodies.

An Expert said he supported the question by the Rapporteur on Article 8 of the Code on Criminal Procedure which had not specified the standard that would be applied concerning an act of torture committed outside the Principality of Monaco. What were the appeal procedures available if a superior handed down an order that involved an act of torture? Concerning Article 3, the Expert asked for the criteria to assess whether a person was at risk of being tortured after deportation or extradition.

Concerning the duration of pre-trial detention, the maximum time limit was set but no details were provided especially as there was a case of a two year pre-trial detention in Monaco for a French citizen. Compensation was applicable to victims of torture under common law but this required an initiative by the victim. The Expert asked in the case where a victim died, how would the family, as required under Article 14 of the Convention, be provided with compensation? The Expert concurred with the Co-Rapporteur in encouraging the Government of Monaco to ratify the Optional Protocol.

An Expert asked why there were so few civil society organizations in Monaco and was there a mandate to deal with complaints granted to the Human Rights Unit? Could the delegation provide information on discrimination against gay and lesbian groups and what were the specific forms of violence against women that were covered in the new legislation?

An Expert encouraged Monaco to ratify the Convention on the Rights of Persons with Disabilities and to ensure that disabled persons were fairly treated, particularly concerning health care and that psychiatric services were based on free and informed consent.

A Committee member commented on the peculiar situation in Monaco concerning its relationship with France. Could individuals not domiciled in Monaco, either refugees or those on a temporary visit, utilize judicial remedies to protect human rights? The Expert asked for clarification on the treatment of detainees sentenced in Monaco and handed over to France to serve their sentence, was there monitoring of foreigners handed over to France for detention and had any visits, currently under negotiation, occurred? If a prisoner who was sentenced in Monaco made a complaint against a prison official in France, which Government would rule on it?

An Expert commented on the statistics provided by Monaco. There were 40 people, between 2004 and 2010 who were transferred to Nice, France to carry out their detention; of these 19 were French, 28 were European, 8 were Africans, and the remaining from other parts of the world. Were these people informed of their rights in France? The general trend was of more people being sent in 2007 and 2008 and for longer periods of confinement. For example, in 2007 there was a person from the United Kingdom transferred to France to serve an 8 year sentence after having spent more than 2 years in detention in Monaco; could the delegation provide more details on him? Were there any issues arising from the way prisoners were treated in France, had there been complaints? An Expert asked for an update on the negotiations to permit monitoring by Monaco authorities of individuals sent to French prisons.

A Committee member asked if there were steps to encourage women to participate in Government and requested the delegation to explain further the challenges of adopting the Optional Protocol.

Response by the Delegation

PHILIPPE NARMINO, Director of Judicial Services of Monaco, made a general presentation of the situation of Monaco by stating it was classified as a micro state, less than 2 km2 of land and this imposed constraints on the composition of the social structure. The Principality was driven by the same 700-year old dynasty with 32,000 inhabitants, among which 8,000 had citizenship, which meant that the citizens were a minority in their own country. In Monaco there was an active enterprise sector with factories that produced material for the automobile industry, in addition to tourism and shipping. Monaco was an enclave in the French territory, there was a custom union with France and all electrical services come from France. The Principality received more than half of its State budget by value added tax, which was about 50 million euros per year. The only detention facility in Monaco was a small establishment where people stayed for a short period until they were transferred to the French penal system where they would be oriented to an appropriate detention facility across France. The prisoner would then only be connected to Monaco for two matters: a request for conditional freedom or a request for grace which would be passed on to Monaco for a decision. Concerning the United Kingdom prisoner, who had violently attacked shops in Monaco and was detained there for two years while applying to all possible recourse, he was sent to France and at the end of 2010 requested conditional freedom and as he had excellent behavior in France, Mr. Narmino personally granted the request and the prisoner was now free.
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