10 November 2011
The Committee against Torture this morning began its consideration of the initial report submitted by Madagascar on how it implements the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Introducing the report, Honore Parfait Razafinjatovo, Director General of Programmes and Resources at the Ministry of Justice, said that despite the ongoing political crisis since 2009, Madagascar had upheld international obligations by regularly presenting reports to the human rights treaties it had ratified. The new Prime Minister had initiated a roadmap to stability which included plans to hold democratic elections, and the new 2010 Constitution for the first time enshrined the prohibition of torture. In 2008 a new law was enacted which placed the Convention into national law. In 2010 Madagascar ratified the Optional Protocol. Prosecutions had been opened against suspected perpetrators of acts of torture, and training workshops for those responsible for the application of the law, including magistrates, police officers, and lawyers, had been organized in which the status of the Convention above national law was stressed. In 2008 the National Human Rights Council, based on the Paris Principles, was established, and in particular authorized to carry out monitoring of places of detention and prosecute acts of torture. However, due to the current suspension of the Madagascar parliament it was not currently in operation. Finally, a National Action Plan was in development, which would include measures to effectively counter torture and ill-treatment, and establish a mechanism for follow-up and evaluation.
Essadia Belmir, the Committee Expert who served as Rapporteur for the report of Madagascar, commended Madagascar’s efforts to improve human rights and noted the sensitive situation Madagascar was currently in, with a new Prime Minister and no current parliament, as well as a transitional President and new legal machinery. Ms. Belmir asked whether the State party would criminalize torture in the Criminal Code, and about an alleged increase in acts of torture, over-zealous behaviour by security forces, arrests and disappearances, particularly of political opponents, lawyers, journalists, students and demonstrators. Ms. Belmir also raised the conditions of prisons in Madagascar, including massive overcrowding, and on traditional ‘Dina’ law and the extradition process.
Other Committee Experts raised questions about the use of solitary confinement in prisons, impunity for perpetrators of torture, especially among the security forces, on human trafficking and on violence against women and girls. Experts also raised issues such as the treatment of persons with psychological illnesses, the death penalty and alternatives to the extensive use of pre-trial detention.
The delegation from Madagascar included representatives from the Ministry of Justice, the National Human Rights Council of Madagascar, the Human Rights and International Relations Department and the Permanent Mission of Madagascar to the United Nations Office at Geneva.
The Committee will next meet in public at 10 a.m. on Friday, 11 November to start its consideration of the fourth periodic report of Belarus (CAT/C/BLR/4). It will hear the response of Madagascar to the questions raised this morning on 11 November at 3 p.m.
Report of Madagascar
The initial report of Madagascar (CAT/C/MDG/1) notes that Madagascar ratified the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment in 2005. In criminal law, prior legislative reforms are required before treaty provisions recommending States parties to criminalize certain acts could be applied. Such is the case of the criminalization of acts of torture and other cruel, inhuman and degrading treatment or punishment. However in conformation with the Convention against Torture, acts of torture are criminal offences in their own right under Malagasy law. The National Law Against Torture enshrines the broad principles regarding prevention, prohibition, punishment, protection and redress and reflects the essential provisions and terms of the Convention, for its effective application throughout the country.
The provisions of the Malagasy Constitution do not expressly prohibit torture. As a party to the International Covenant on Civil and Political Rights, which prohibits torture and other cruel, inhuman and degrading treatment or punishment, Madagascar is required to take measures to give effect to this prohibition within its national legislation. Yet, under the National Law against Torture, acts of torture and other cruel, inhuman and degrading treatment or punishment are criminal offences. The National Human Rights Council, established on 17 July 2008, is empowered to undertake administrative inquiries, acting on an individual or collective complaint relating to the practice of torture and ill-treatment.
The detention of a person who has been arrested or sentenced in an establishment or a place that is not officially registered as a place of deprivation of liberty or that is secret shall be punished by two to five years’ imprisonment under articles 5 and 13 of the National Law against Torture. The National Law against Torture establishes the absolute prohibition of torture at all times and under any circumstance. The prohibition of torture may not be derogated from either in times of peace and or in times of war or armed conflict, including periods of political instability.
Introduction of the Report
HONORE PARFAIT RAZAFINJATOVO, Director General of Programmes and Resources at the Ministry of Justice, said Madagascar’s initial report was developed by an inter-ministerial Committee that included members of civil society, both regionally and nationally. Despite the ongoing political crisis since 2009, Madagascar had upheld international obligations by regularly presenting reports to the human rights treaties it had ratified, such as to the Committee on the Elimination of Discrimination against Women and the Committee on Economic, Social And Cultural Rights in 2009, the Universal Periodic Review in 2010 and in 2012 it would present a report to the Committee on the Rights of the Child. The new Prime Minister had initiated a roadmap to stability which included plans to hold democratic elections. Constitutional reform was innovated in the 2010 Constitution, which for the first time enshrined the prohibition of torture, stating that nobody should be submitted to torture or other cruel, inhuman or degrading treatment or punishment. In 2008 a new law was enacted which placed the Convention into national law. It included the principle of non-refoulement and the rights of victims of torture to compensation.
In 2010 Madagascar ratified the Optional Protocol, which committed it to regular visits by international bodies to places of detention. Prosecutions had been opened against suspected perpetrators of acts of torture. Training workshops for those responsible for the application of the law, including magistrates, police officers and lawyers, had been organized in which the status of the Convention above national law was stressed. Follow-up and evaluation of the change in behaviour of attendees after they had taken part in the workshops was also carried out. In 2008 the National Human Rights Council, based on the Paris Principles, was established, and in particular authorized to carry out monitoring of places of detention and prosecute acts of torture. However, due to the current suspension of the Madagascar parliament it was not currently in operation.
Madagascar intended to develop a National Action Plan which included measures to effectively counter torture and ill-treatment, and establish a mechanism for follow-up and evaluation. The action plan would also describe measures to fight violence against women, including sexual violence and marital rape, violence against children, ways to improve detention facilities, specifically prison overcrowding, separation of minors from adult prisoners, malnutrition and lack of resources for medical and health care. The Action Plan would invoke respect for all human rights, in particular the protection of the freedom of the press, of expression and of opinion, of the human rights to nutrition, health and education, and the rights of persons with disabilities.
Questions from Committee Experts
ESSADIA BELMIR, the Committee Expert who served as Rapporteur for the report of Sri Lanka, commended Madagascar’s efforts to improve human rights and noted the sensitive situation that Madagascar was currently in. The Prime Minister was about to put his new Government together, there was the issue of setting up a new parliament, and there was also a transitional President, not to mention the new legal machinery that was in place. The new Constitution and the 2008 law categorized, and clearly prohibited torture. Was the State party thinking of criminalizing torture in the Criminal Code? Furthermore the new 2008 law, which defined torture, was little known outside of political circles – would it be preferable to include that in the Criminal Code as well?
Torture had allegedly been practiced by both prison and police officers for political motivations. Persons who opposed the Government or were linked to the opposition party considered that since the arrival of the transitional President acts of torture had increased. There had also been instances of protestors being murdered by the police, unlawful arrests, and disappearances. Targeted individuals included lawyers and journalists; some individuals were allegedly arrested by the police or the army after being involved in demonstrations. Had the State party heard the allegations, and could it comment?
The Committee had also been informed that multiple detentions of political opponents and members of the opposition, particularly since March 2009, were often ordered by the high transitional political authority, and not by the police force. There were many allegations of ill-treatment of those detainees. Did the State party have information on those alleged acts?
Did the new National Human Rights Council have any power? Why had that mechanism been unable to act on the many allegations of ill-treatment?
Madagascar’s prisons were in a bad state and there was a high death rate among detainees. Nutrition was said to be poor and healthcare insufficient. Could the delegation give specific figures on the percentage of prison occupation, and information on prison conditions? Could the delegation comment on alleged humiliation of prisoners, including cases of rape, food being given in exchange for sex and difficulties for detainees to access lawyers or family visits? Lawyers had reported cases of ill-treatment suffered personally, especially if they had been involved in demonstrations.
What was the scale of sentences for perpetrators of torture? Some acts of torture were deemed to be a crime punishable by two to five years imprisonment, while some were deemed to be an offence, or ‘breach’, and received sentences from five to ten years. Torture was torture, and a crime; it could not be subtly interpreted as being a ‘breach’ or a ‘crime’ and it was inappropriate to have two levels of sentencing. Torture should be absolutely prohibited.
In March 2009 the transitional Government declared a state of emergency. What were the reasons for the suspension of some rights? What guarantees and protections were provided to citizens during the state of emergency?
Extradition could not take place if there were fears the person might be tortured upon extradition. Extradition was the remit of the Minister of Justice and stemmed from a Government decision. To what extent were asylum seekers protected in the State party from any decision to return (refoulement) them to countries where they could be tortured? Were the risks of torture in refoulement, not just extradition, seriously considered?
Frequently the families of detainees were not told where their relative was being held. A police officer could detain a person for 48 hours or more before the person saw a judge, which was a very long time.
How was the tribal law (Dina law), referred to in the report, applied? It was said that the population often resorted to Dina law because they did not trust national jurisdiction. Was Dina really required, or was it filling a gap in national law?
ABDOULAYE GAYE, the Committee Expert who served as Co-Rapporteur for the report of Sri Lanka, thanked Madagascar for their report, and said he fully supported comments by Ms. Belmir on efforts taken by the State party to submit reports to the Committee against Torture and other treaty bodies, at a difficult time of transition for the State Party. Mr. Gaye first asked about the training of doctors to detect physical and psychological marks of torture, in addition to forensics, and asked for figures on training, as it was a very important issue.
Mr. Gaye noted that there had been a number of unfortunate events when security forces were quick to fire on protestors, using real bullets. In one recent event 27 persons were killed and over 100 injured. There were several reports of demonstrations being repressed by security forces, where further deaths and injuries had been recorded.
Was free legal assistance available for detained persons unable to pay a lawyer? Could a request for a medical examination by a person in custody be refused by police?
The current political situation had led to many arrests, not just of members of civil society, but also of lawyers and politicians and even serving senators and deputies. There was in principle a parliamentary protection system that allowed senators and deputies immunity from arrest. Had senators and deputies been arrested while still in office, and did they have parliamentary immunity from arrest?
Prison overcrowding had already been mentioned, but an Expert noted that while Madagascar had capacity for 13,000 prisoners, in reality there were currently 20,000 prisoners. Furthermore, 43 per cent of those prisoners were in ‘preventative detention’ or pre-trial custody – was that necessary? It seemed there was no reasonable time-frame for cases to be heard in court. A widespread practice called ‘alternative punishment’ could help reduce prison overcrowding – did the State party have any knowledge of that option?
The 2006 decree on prison administration contained a detailed description of disciplinary cells where a detainee could be held in isolation for up to four weeks. The cell dimensions - one by two metres square, and two and a half metres high - meant it was cruel and inhuman treatment. The Special Rapporteur on Torture had said that solitary confinement was a cruel and inhuman treatment, and the Expert said there should be an urgent update to change the dimensions of cells and the element of isolation.
An Expert raised a recent visit to a Madagascar prison by international observers, who reported that over 2,200 prisoners were held in a prison with a capacity of 800, and most of those were on pre-trial detention. Women and children were not separated, and pregnant detainees were left without medical care. Furthermore some minors were not separated from adults.
Had any action been taken against an official responsible for torture, particularly among the security forces, as it seemed impunity was encouraged? Could the delegation provide more information on the social rehabilitation programme for victims of torture? Why was the Commission of Enquiry created, when the bodies of common law did not function, and the National Human Rights Commission was not currently in operation?
There was no mention in the report of human trafficking and the exploitation of children, especially street children, particularly as sex tourism was a noted problem in Madagascar.
A Committee Expert asked whether the Istanbul Protocol on training officials about issues surrounding torture was known and used in Madagascar.
The high numbers of early marriages in Madagascar was a concern for the Committee. An Expert also asked how many complaints of trafficking had been received by the authorities, and what was being done to combat that?
How were persons with psychiatric or mental illness treated in Madagascar, as there was little information in the report?
There appeared to be a de facto moratorium on the death penalty – was Madagascar intending to get rid of the death penalty once and for all?
An Expert asked about the whereabouts of two leaders of opposition groups who had been listed by non-governmental organizations as ‘disappeared’, as they were in prison in an undisclosed location. Could the delegation clarify their whereabouts?
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