Committee against Torture
2 November 2011
The Committee against Torture this morning began its consideration of the initial report submitted by Djibouti on how it implements the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Introducing the report, Abdi Ismael Hersi, Secretary-General of the Ministry of Justice, said that since 2000 Djibouti had given the highest priority to justice and human rights, and they had been integrated into the new Justice Department. There had been reforms to the judicial system and modernization of legislation, which included the Family Code, which forbade harmful practices such as early marriage, and the Labour Code, which incriminated child labour. The Constitution and the Penal Code of 1992 specified ‘No one should be subject to torture, or inhuman, cruel or degrading treatment’, and any perpetrator of such an act would be punished by the law. The act of submitting a person to torture or barbaric acts would be punished by a minimum of 15 years imprisonment. However, Djibouti hoped to soon incorporate the Convention’s definition of torture into a revised penal code. Training on the prevention of torture was given to law enforcement, judicial and medical personnel, and awareness-raising was held on the illegality of corporal punishment for minors and female genital mutilation, which although illegal was still widespread. There were new provisions for detained persons and the extradition process, and the death penalty had been abolished.
Alessio Bruni, Rapporteur for the report of Djibouti, welcomed the reforms introduced by Djibouti, and said that he hoped for a commitment from the delegation that the definition of torture given by the Convention Against Torture would be incorporated into national legislation. Mr. Bruni also asked about prison conditions, in particularly Gabode jail, and raised specific cases of alleged torture. He said many human rights abuses happened as a consequence of ignorance of the law: what was the State party doing to remedy that, as ignorance was no defence. The report stated that the National Human Rights Commission asked the Government to ensure that all cases of torture were investigated – how many investigations had been held?
Claudio Grossman, Chairperson and Committee Expert who served as Co-Rapporteur for the report of Djibouti, said that the reforms such as the abolition of the death penalty were crucial developments recognized and valued by the Committee. Other Committee Experts raised questions about conditions of detention, prisons and alleged forms of torture in Djibouti, and asked why no person had been prosecuted for an act of torture or no victim of torture formally compensated. A number of Committee Experts raised the subject of female genital mutilation, which Djibouti agreed was a form of torture, and which 90 per cent of women in Djibouti had suffered. Experts also asked about training of law enforcement, judiciary and medical personnel on prevention of torture, of measures to prevent the corporal punishment of children, human trafficking and the rights of asylum seekers and irregular foreigners.
The delegation from Djibouti included representatives from the Ministry of Justice, the Department of Legislation and Reform, the National Commission of Human Rights of Djibouti and the Permanent Mission of Djibouti to the United Nations at Geneva.
The Committee will next meet in public at 3 p.m. this afternoon when it will hear the response of Morocco to questions raised yesterday by the Committee. It will hear the response of Djibouti to the questions asked this morning on Thursday, 3 November, starting 3 p.m.
Report of Djibouti
The initial report of Djibouti (CAT/C/DJI/1) notes that the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment was ratified by Djibouti in November 2002. The adoption of Djibouti’s pluralist Constitution of 15 September 1992 ushered in positive changes that helped to strengthen the rights and freedoms of citizens of Djibouti. There is still some slippage, however, in the form of arbitrary arrests and detentions, police custody beyond the statutory time limits and repeated cases of violence reported by citizens to common law (droit commun) courts.
With regard to the obligation of all States parties to the Convention to incorporate the provisions of the Convention into domestic law, it should be noted that, up until now, seven years after its ratification, no specific domestic legislation has been adopted that defines or punishes torture. Moreover, the Constitution simply states that torture is prohibited. Victims, therefore, can bring an action before the courts only in relation to the acts that underlie torture both materially and in criminal law. The different institutions dealing with torture have simply adopted the definition of torture given in the Declaration on the Protection of All Persons from Being Subject to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment adopted by General Assembly resolution 3452 of 9 December 1975.
Actions have been taken to abolish torture and other cruel, inhuman or degrading treatment. These include: the dismantling of Villa Christophe, the infamous detention centre where, in the past, anyone suspected of engaging in subversive political activity or holding anti-government views was systematically tortured; efforts to eliminate arbitrary arrests and ill-treatment in police stations, military police barracks and army or other camps, through a policy of staff training and awareness raising on human rights; a marked improvement in prison living conditions; press liberalization (1992 Communication Act); efforts by judicial and police authorities to ensure that custody time limits are observed; liberalization of religious practices; and authorization of the activities of all non-governmental organizations.
Presentation of the Report
ABDI ISMAEL HERSI, Secretary-General of the Ministry of Justice, first passed on the apologies of the Minister for Justice, His Excellency Ali Farah Assoweh, who at the last minute was prevented from attending the meeting, and said that Djibouti was aware of the significant delay in presentation of the report, which should have been made in 2003. Since 2000 Djibouti had given the highest priority to justice and human rights, and they had been integrated into the new Justice Department. The judicial system had been reformed over the past decade, to give more independence to the judiciary and to modernise legislation. Since 2002 the Government had ratified several fundamental international instruments, including the Convention against Torture, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the Rome Statute of the International Penal Court. The National Human Rights Commission had two structures to bring human rights to both public and civil society, and communications. New legislation included the Family Code, which forbade harmful practices such as early marriage, and the Labour Code, which incriminated child labour.
However the President of Djibouti had highlighted many areas where there were problems protecting and promoting human rights, such as the presence of political will for promoting and protecting human rights. The Constitution and the Penal Code of 1992 specified ‘No one should be subject to torture, or inhuman, cruel or degrading treatment’, and any perpetrator of such an act would be punished by the law. The act of submitting a person to torture or barbaric acts would be punished by a minimum of 15 years imprisonment. However, Djibouti hoped to soon incorporate the Convention’s definition of torture into a revised penal code. Training and workshops on prevention of torture, drafted by human rights groups and the Office of the High Commissioner of Human Rights, was given to the security forces, including the police, and judiciary personnel, penitentiary security and the magistrature. Corporal punishment in schools had been strictly banned and teachers found guilty were systematically suspended and pursued within the legal recourse. Civic education courses for children highlighted the importance of human rights and the wrongdoing of torture. The Government had also done specific legislative work and awareness-raising among families on violence against women and children. In 1995 the Government banned female genital mutilation, and recognized it as a form of torture. Female genital mutilation was a harmful practice, and it was recognized that it was still widespread. Nevertheless, awareness-raising was helping to phase out the practice, particularly in urban areas.
Groups including the justice department, mediation groups, the National Commission on Human Rights and the Listening and Training Group, worked daily on the fight against torture. A person could not be detained over 48 hours, and all detained persons had the right to visits from a lawyer, a doctor and their family. Legal aid was now available for those with limited resources. Following detention the person was either released or put into provisional detention, and the latter could only be ordered by a judge. Detained persons were separated into categories, including minors, women, and so forth. Persons deprived of their liberty had access to all of their fundamental rights, except the right to come and go freely. Extradition procedures had to be expressly ordered by a judge, who must reject all requests for extradition that come from a State that did not guarantee the person’s access to fundamental rights. The death penalty was abolished in 1995, under the Penal Code. That was a major consequence of Djibouti signing the Optional Protocol of the International Covenant on Civil and Political Rights. Djibouti remained open to maintaining a dialogue with the international community and the Committee against Torture to increase the respect for human rights.
Questions by the Rapporteur
ALESSIO BRUNI, Committee Expert who served as Rapporteur for the report of Djibouti, congratulated the State party on the broad consultations held with civil society in order to draft the report, which was a very positive trend. Mr. Bruni expressed his regret at the delay in submission of the report, but saw that the State party recognised that fact. This morning the delegation informed the Committee that there would soon be cosmetic touches to legislation in order to harmonize ratified Conventions with national legislation. Mr. Bruni hoped for a commitment from the delegation that the definition of torture given by the Convention against Torture would be incorporated.
At what moment could a detainee access a lawyer, and at what time could a lawyer play a role in defending the person under arrest?
Many human rights abuses happened as a consequence of ignorance of the law: what was the State party doing to remedy that, as ignorance was no defence. The report stated that the National Human Rights Commission asked the Government to ensure that all cases of torture were investigated – how many investigations had been held?
Furthermore, the Commission’s remit was to investigate penitentiary conditions: when would the deplorable living conditions in the Gabode Prison be improved? What was the current situation of prison overcrowding, and the state of police cells? How many detainees were in the Gabode Prison today?
Some non-governmental organizations had launched appeals for Mr. Mohamad Ahmed, known as ‘Jabha’, a militant for the National Front for Democracy, who was arrested in June 2010, and was allegedly tortured. He has been incarcerated in the Gabode Prison and was reportedly in a very bad state of health. A Yemeni citizen, Mohammed Al Sabad, was arrested for alleged collusion with terrorists, and was secretly transferred elsewhere at the request of the American Security Forces. Other specific allegations were of torture taking place at the police headquarters in Djibouti. Could the delegation give more information on those cases?
Which Djiboutian authority took the decision to deport a person? A relevant case was of two pilots who refused to shoot down demonstrators. Apparently they were deported with their consent, which was surprising. Could the delegation provide more information?
Questions by the Co-Rapporteur
CLAUDIO GROSSMAN, Chairperson and Committee Expert who Served as Co-Rapporteur for the report of Djibouti, said that the reforms such as the abolition of the death penalty were crucial developments recognized and valued by the Committee.
Mr. Grossman asked about the training of personnel, both law enforcement and medical, on recognizing and preventing torture? Since the Government started providing training, had incidents of torture decreased? Training programmes for military officers did not include torture – would this be rectified?
Women and vulnerable groups were more exposed to torture than others, particularly in conflicts, so could training also encompass gender-related issues such as rape being used as a method of warfare?
The evidential standard of a court, as specified in the report, said that courts were only forbidden from using evidence gained from torture, when torture had left a visible mark on a person. Such evidence should be excluded whether torture left or a mark or not, as mental torture was also torture.
Between 2005 and 2006 over one child in five experienced physical punishment. There was an issue of training teachers in schools; what measures were being adopted to increase the training on corporal punishment of children, including in the home.
Concerning human trafficking, Djibouti was unfortunately both a transit, source and destination country for trafficked men, women and children. In light of that situation, was the State party contemplating taking extraordinary measures to fight the scourge of trafficking, which was a form of slavery.
The State party’s comments on criminalizing female genital mutilation, and how it was being reduced in cities, were valued. However female genital mutilation continued to be widespread, and civil society reports showed that over 90 per cent of females in Djibouti had undergone female genital mutilation. That practice violated the Convention. The Committee would like to know what extraordinary measures had been taken to stop that violation.
The law punished convicted rapists with up to 20 years in prison. Was that law effectively implemented? How many persons were jailed for rape in Djibouti? Furthermore there was no law criminalizing spousal rape in Djibouti. The issue of domestic violence was very important. What was the State party doing to rectify those issues?
Questions from Committee Experts
A Committee Expert said that Djibouti, as a small country with less than a million persons, located in a very challenging area of the world and bordering powerful or conflict-ridden countries, showed how such a country could progress in the field of human rights.
Another Expert noted there was no legislation on asylum seekers or foreigners per se. Had Djibouti ratified the African Union Convention on refugees? Somali refugees had no problems being benevolently received in Djibouti but there appeared to be problems for other groups. Refugees coming from Eritrea and Ethiopia, in particular, found themselves living in a difficult situation indefinitely and might be expelled.
How were judges appointed, particularly in the higher courts? What was the length of their term and how could it be revoked? Those questions formed a key point of judicial independence.
Preventative detention – before a court hearing - could last over a year, and was often a year and two months on average. What was being done to remedy that situation?
An Expert said that the clear will of the State party to bring practices into line with the international instruments to which Djibouti belonged, including the Convention on Torture, must be congratulated. However, in the report the State party mentioned potential remedies for victims of torture and cited a number of recourses that were available.
An Expert reaffirmed that the report said that female genital mutilation had been banned since 1995, but more needed to be done. The State party acknowledged that female genital mutilation was a form of torture. The Committee on the Rights of the Child said there had been no prosecutions of persons for carrying out female genital mutilation. Were individuals who performed those attacks penalized in any way?
Many citizens of Djibouti sought redress through traditional, common-law courts. Did cases of violence against women and early marriage come through those courts?
According to the United States State Department report on human rights in Djibouti in 2010, cases of rape were usually resolved by an ‘amicable settlement’ aimed at making peace between all parties, rather than punishment for the perpetrator and redress for the victim. Were there convictions of rape in Djibouti?
An Expert said that the report cited non-governmental organizations’ own reports on torture in Djibouti, and described forms of torture such as the ‘swing’, electric shocks to the body, beatings, lengthy interrogations of several hours without a break at inappropriate times, and 24 hour confinement in ‘tiny, filthy cells barely 10 square metres, that were hot, damp and dark’. However, an Expert pointed out that the same report said that no prosecution of alleged tortures had happened in Djibouti. Could the delegation explain why not?
There was no juvenile justice system and it was possible to incarcerate children at the age of 13 – that was an observation, not an allegation. There should be separate judicial proceedings for juvenile offenders and children.
An Expert pointed out that Djibouti had a population of just 800,000, but had to host over 60,000 refugees. In addition Djibouti had to host thousands of impoverished migrant workers seeking better economic conditions. That must be a great burden for the country. The Committee encouraged the State party to implement national legislation on asylum seekers and migrants. Half of those refugees were female, and about 44 per cent of the refugees were minors under the age of 17. When minors sought asylum alone, without an adult, were they given equal opportunity to present their application?
An Expert raised the issue of human rights violations against persons with psychiatric illnesses. The report had little information specifically on mental health hospitals. What legal safeguards did hospitalized persons have? It was possible that traditional practices could affect ill persons in a harmful way. When health personnel detected signs of torture or ill treatment in persons with a psychiatric illness, to whom could they report it?
Remarks by the Head of Delegation
ABDI ISMAEL HERSI, Secretary-General of the Ministry of Justice, said that by submitting the report Djibouti wanted to benefit from the experience o f the Committee, and also to see the external viewpoint of what was being accomplished in Djibouti on human rights in general and more specifically in the fight against torture and degrading and inhuman treatment of human beings. He said that within the extent of their abilities, competence and experience, the delegation would prepare answers for tomorrow. The delegation would take note of the recommendations of the Committee, and on return to Djibouti there would be many issues to pass on to the decision makers of Djibouti.
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