Committee against Torture hears response of Delegation of Mauritius

Committee against Torture
AFTERNOON

20 May 2011

The Committee against Torture this afternoon heard the response of Mauritius to questions raised by Committee Experts on the initial report of that country on how it is implementing the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Responding to a series of questions raised by Committee members on Thursday, 19 May, Shree Baboo Chekitan Servansing, Permanent Representative to the United Nations Office at Geneva, noted that the Government was working to mainstream the various human rights mechanisms against torture within the constraints of a small jurisdiction that faced economic, financial and social difficulties. Other members of the delegation explained that the sanction for torture had increased from a sentence not exceeding 5 years in 2003 to a sentence not exceeding 10 years in 2008. Mauritius had a unique requirement that police must dislodge provisional information on a person’s arrest within 72 hours, which would bring them from administrative detention into judicial supervision; if the person was not brought before the Court within this time, the Court could release the prisoner on bail or strike out the provisional charge.

Since the submission of the report from the Subcommittee on Torture in 2008, the Government had taken concrete actions to implement many of the recommendations, including the administrative establishment of the National Preventive Mechanism within the National Human Rights Commission, the finalization of the Police Complaints Division Bill, regular training for police officers, an amendment to Standing Order 120 of the Police to provide that detained prisoners have the right to inform their family of their detention, and improvements to prison facilities including the ongoing construction of a new prison to accommodate 750 detainees at a cost of 1.5 billion rupees. Delays in finalizing legislation were due to a new Government voted in a year ago with a heavy legislative programme from 2010 to 2015 and because the National Assembly did not sit throughout the year.

Luis Gallegos Chiriboga, the Committee Expert serving as Rapporteur for the report of Mauritius, stressed that these draft laws were needed and could not wait years until implementation. He urged the Government to eliminate an environment of impunity created by the differential in punishment of 10 years for torture and the sentence of 40 years for terrorism. Would the Government consider giving torture the highest sanction under the Criminal Code? The Rapporteur asked for statistics on those cases which had been struck out because of delay in pre-trial detention.

Alessio Bruni, the Committee Expert serving as Co-Rapporteur for the report of Mauritius, asked if the Government had a timeline for publishing the preventive recommendations in the report from the Subcommittee on Torture’s visit. The Co-Rapporteur said there appeared to be a lack of urgency in implementing recommendations following visits to detention facilities by the National Human Rights Commission and asked for information on the outcome of police complaints cases which were prosecuted, including examples of the crime and sentence.

Other Committee Experts asked if the provision that debtors who could not repay would be put in prison was still valid; was there corporal punishment in prison and if a detainee died in custody, could a civil suit be pursued while the criminal case was underway?

The delegation from Mauritius included representatives from the Permanent Mission of Mauritius to the United Nations Office at Geneva, the Attorney General’s Office and the Office of the Prime Minister.

The Committee will meet at 10 a.m. on Monday, 23 May when it will consider the initial report of Ireland (CAT/C/IRL/1).

Response by Delegation of Mauritius

SHREE BABOO CHEKITAN SERVANSING, Permanent Representative of Mauritius to the United Nations Office at Geneva, noted that the Government was working to mainstream the various human rights mechanisms against torture within the constraints of a small jurisdiction, including the structural economic, financial and social difficulties. The Government respected the independence of the judiciary, and all detainees had the right of appeal to the judicial committee of the Privy Council. The Ambassador said that the Government could take leadership in the work of Parliament but could not subdue Parliament and that was why bills could take a long time to be passed. The Chagos Archipelago was an outstanding issue that the Government continued to resolve.

Another member of the delegation said there was no need to provide statutorily for the offense of complicity in torture. In 2003 the sentence for the offense of torture was a fine not exceeding 50,000 rupees with a sentence not exceeding 5 years, in 2008 this was amended to a maximum fine 150,000 rupees with a sentence not exceeding 10 years. There was no statutory aggravating circumstance in the case of torture but the judge would consider the conditions of the case. All arrested persons had the right to counsel and the police must dislodge provisional information on a person’s arrest within 72 hours, which would bring them from administrative detention into judicial supervision. If the person was not brought before the Court within this time, the Court could release the prisoner on bail or strike out the provisional charge.

A draft police complaints bill was intended to create a national police complaints division to investigate the death of any persons in police custody and advise on police misconduct; it would consist of the chairperson or the deputy of the National Human Rights Commission. With regard to financial independence, the National Human Rights Commission enjoyed financial autonomy and had its own budget which was voted by Parliament every year.

The extradition act dated back to 1970 and would shortly be reviewed to incorporate counter terrorism conventions. In Section 78 of the Criminal Code, which referred to torture, the Mauritian courts could try offences committed outside Mauritius where the victim was a citizen of Mauritius, the alleged offender was in Mauritius, or the alleged offender was in Mauritius and had not been extradited. There was provision for extra territorial jurisdiction where an offense was committed aboard a ship or aircraft registered in Mauritius. There were no prosecutions brought under Section 78 of the Criminal Code; provisional charges were laid in the La Bastille case but no formal charges were brought forward. Exceptional circumstances, such as a state of war, could not be used to invoke torture. Police inquiry files were regularly reviewed to ensure there were no violations.

Concerning cases of extradition, expulsion and return cases after 1999 would be submitted. Four cases of surrender: three to the United Kingdom and one to Canada, diplomatic assurances were not obtained and all had applications for habeas corpus submitted to the Supreme Court with the cases upheld. Monitoring was requested in all cases and for the one in the United Kingdom, a person was tried. The Government introduced special measures, including the elaboration of a witness protection programme, to protect witnesses from intimidation which occurred often in drug cases. ‘Trial within a trial’ would be held if a confession was ruled as inadmissible by a judge and the burden of proof rested with the prosecution to prove the confession was valid. The maximum offense was 30 years and would be changed to 60 years; no sentence exceeding 40 years in length was imposed for a single offense.

Early in 2012, Mauritius would accede to the Optional Protocol against Torture and withdraw is reservations to various provisions of the Convention.

The Mental Health Care Act provided for treatment to be administered to a person at a mental health care centre with his consent or that of his next of kin where he was unable to give consent; if the next of kin could not be traced or refused consent, the treating psychiatrist would submit a treatment plan to the Mental Health Care Commission for approval before the treatment was carried out. The Commission consisted of medical officers and a barrister of at least five years standing at the Bar. The Provisions of the Mental Health Care Act provided certain safeguards; including that any admission of a patient involuntarily to a mental health institution required a Magistrate’s notification within 24 to 48 hours.

A new Government was voted in a year ago and there was a heavy legislative programme schedule from 2010 to 2015. Draft bills were often posted on the Attorney General’s website and in public newspapers to receive comments from the public. The Bail Bill, to provide electronic bracelets, had significant financial commitments and therefore required broad based participation. There were restrictions on the sitting of the National Assembly throughout the year which delayed the passing of bills.

Currently, legal aid was not provided but the Attorney General was in consultation with lawyers to establish a pro bono system. There was no legal crime of martial rape in the Criminal Code but there was an intention to do so in the forthcoming sexual offence bill. Concerning corporal punishment, the law had not provided for it at home but in the Children’s Bill under draft, it would be provided for. The Equal Opportunities Act passed in 2008 but had not yet been proclaimed. There was no minimum age of criminal responsibility; Section 44 provided that a minor under the age of 14 acting without discernment would be acquitted and either handed over to his relatives or in reform for not longer than when he or she was 18 years old.

Since the submission of the report from the Subcommittee on Torture in 2008, the Government had taken concrete actions to implement the recommendations, including the administrative establishment of the National Preventive Mechanism within the National Human Rights Commission, the finalization of the Police Complaints Division Bill, regular training for police officers, the Standing Order 120 of the Police was amended to provide for detained prisoners to inform their family of their detention, prison facilities were improved and all prisoners were now allowed one hour of exercise, and a new prison was being constructed to accommodate 750 detainees at a cost of 1.5 billion rupees.

The most recent visits of the National Human Rights Commission to places of detention were to the segregation unit of Beau Bassin Prison and the Correctional Youth Centre for boys in July 2010; at Petit Verger Prison and Richelieu Open Prison in August 2010, and at Women’s Prison, Beau Bassin and the New Wing Prison in August 2010.

Concerning police training there were 8,143 police officers, out of 10,000, from all ranks trained in human rights at the Police Training School. The Police launched a National Strategic Framework in February 2010 with a focus on human rights to ensure that the Police Service was imbued with democratic values, working with the law, respecting and protecting human rights, the rights of small groups, assuring law and order and security, and instilling public confidence through transparency, openness and accountability. An expert from India was employed for a period of two years to devise a training schedule to cover human rights. There has been no specific training on the Istanbul Protocol.

Concerning police complaints, in 2007, nine cases were forwarded to the Directorate of Public Prosecutors; and four cases were forwarded both in 2008 and 2009. In 2009 the Police Investigation Bureau took to court four officers, one was convicted and three were pending in court.

At present there were 2,576 detainees and 921 or (35.75 per cent) on pre-trial detention. Single and large cells were available; the latter held 3 to 4 detainees. For open prisons with minimum security there were dormitories catering to 20 detainees. Each detainee was supplied with one mattress, two bed sheets, a pillow and cover, a blanket and a night gown. At 6:30 a.m., detainees were unlocked and went to the Association Yard where they remained up to 17:30 hours. All detainees had access to television and radios. Prisoners could volunteer to do brick laying and other construction work, gardening, baking bread or working in the kitchen. Prisoners could earn additional days of remission for work or they could be paid an allowance to purchase goods from the prisons shop.

The Complaints Investigation Bureau of the Police Department was not part of the National Human Rights Commission. The Complaints Investigation Bureau must forward a copy of all complaints to the National Human Rights Commission.

Concerning convictions for domestic violence, in 2010 there were 3,514 cases of which 1,086 were in progress, 203 were awaiting advice from the Directorate of Public Prosecutors, 1,114 were pending in court, 412 were filed, 80 were dismissed and 614 were sentenced. Up to 31 March 2011, there were 603 cases, of which 541 were in progress, 14 pending in court, 5 filed, 8 dismissed and 35 sentenced.

Questions by Committee Experts

LUIS GALLEGOS CHIRIBOGA, the Committee Expert Serving as Rapporteur for the Report of Mauritius, stressed the importance of applying the Istanbul Protocol in training when dealing with possibilities of torture and the need to address the backlog in Courts. The Rapporteur said these draft laws were needed immediately and could not wait years until they would be implemented. Were there any prison visits in 2011? Prison visits were critical for addressing overcrowding. The Rapporteur’s principal concern was to eliminate an environment of impunity and he was concerned that the punishment of 10 years for torture, which was much lower than a sentence of 40 years for terrorism, gave the wrong message. Would the Government consider giving torture the highest sanction under the Criminal Code? The Rapporteur asked for the statistics on those cases which had been struck out because of delay in pre-trial detention.

ALESSIO BRUNI, the Committee Expert Serving as Co-Rapporteur for the Report of Mauritius, said there was something missing because there were so many draft laws in preparation and good intentions but none of the bills had reached the end of the procedure. Concerning the report of the visit of the Subcommittee, did the Government have a timeline for publishing the report? The Co-Rapporteur was concerned that there was a lack of urgency in implementing recommendations following visits to detention facilities by the National Human Rights Commission. What was the outcome of those police complaints cases which were prosecuted; could the delegation provide a few examples on cases including the crime and the sentence. The Co-Rapporteur said there was no reply concerning Article 14 of the Convention on specific rehabilitation measures for victims of torture.

An Expert asked if the provision that debtors who could not repay would be put in prison was still valid and was there corporal punishment in prison? If a detainee died in custody, could a civil suit be pursued when the criminal case was underway?

A Committee Expert expressed support for the Mauritius’ case on Diego Garcia and the displaced persons from Chago Islands.

An Expert asked for further clarification on the Government’s position to publish the Subcommittee on Torture’s report for best practices. The Committee’s position was that transparency would help to achieve the goals of combating torture.

A Committee Expert said it was important to stress an attitude of non-violence against children in home because this was where most children experienced violence.

Response of Delegation

The delegation said it would send the information to the Committee on the number of cases that had been struck off because of delay in pre-trial detention.

Mauritius had no system of registration of detainees because of its unique provisional information process, whereby a prisoner would be brought before the magistrate within 72 hours and information was then processed on the detainee.

The delegation took note of the Committee’s impatience to see the Bills enacted. The maximum sentence of 60 years applied only to a single crime and in practice it was unlikely to have this duration for a single sentence but for a series of offences made to run consecutively. There could not be imprisonment for failing to settle a civil debt.

Mauritius was party to the Istanbul Protocol but had yet to incorporate the provisions into training materials.

There were no visits to jails in 2011. There were three shelters for those in need and there was a drop in centre to assist children who were victims of sexual abuse or exploitation and there was a plan to build a residency drop-in centre for children.
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