11 November 2011
The Committee against Torture this afternoon heard the response of Madagascar 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 the Committee members on Thursday, 10 November, the delegation of Madagascar, which was led by Honore Parfait Razafinjatovo, Director General of Programmes and Resources at the Ministry of Justice, talked about various issues ranging from the role of the Ombudsman, the inclusion of the definition of torture into the Criminal Code, the role of the gendarmerie and the police, detention conditions, prison overcrowding, preventive detention, forced labour, the Dina jurisdiction, extradition and non-refoulement. The delegation also commented on the death penalty and human trafficking.
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’s next public meeting will be at 3 p.m. on Monday, 14 November when it will hear the responses of the delegation of Belarus (CAT/C/BLR/4). The consideration of the report of Greece has been postponed to the next session in May 2012.
Responses by the Delegation
HONORE PARFAIT RAZAFINJATOVO, Director General of Programmes and Resources at the Ministry of Justice, said that the Convention itself accepted the hypothesis of different levels of punishment depending on the level of seriousness of the acts committed. There was ambiguity in the sentencing, and that was due to the lack of definition of acts of torture. Article 4.1 of the Convention did not demand criminalization of ill-treatment but ill-treatment should be penalized just like acts of torture, and the delegation would propose a reform along those lines. The challenge was dissemination of knowledge of the Convention. The United Nations Development Programme was currently leading a study into the shortcomings in statistical data.
The Istanbul Protocol would be taken into account when doctors were trained. The Commission of Enquiry (CNME) was dissolved by a decree on 16 June 2009. The gendarmerie and police had not lost any of their traditional functions in matters of protection of citizens and maintaining order. The Special Intervention Force (FIS) was not able to take decisions on investigations, prosecution and detention as its role started and ended at the time of arrest.
In answer to questions about persons deprived of their freedom, including parliamentarians, journalists and lawyers, those persons did benefit from article 4 of the Convention. Andrianirina Rakotoson, Stanislas Zafilahy and Pastor Edouard were often moved from one penitentiary to the next for security reasons, as they had to be protected from death threats. All three had now been released following the trial.
There was no secret detention centres in Madagascar.
Detention in custody could be extended by one day per 25 kilometres of distance from the headquarters in the capital, but those were very rare cases. The police could not object to a medical examination. A person was put in pre-trial detention either because of investigative needs or in order to protect the concerned person. The person in detention could ask to be released, in which case their request would go before the chamber of pre-trial detention.
In 2004 there were about 22,000 detainees in Madagascar. State policy was now to reduce prison population and thus prison overcrowding. The State was trying to reduce pre-trial detention and sentences in general, and Presidential pardons were also given in some cases. On 10 January 2010 a decree provided pardon for 7,459 detainees. Another measure to reduce prison overcrowding was the transfer of detainees to better penitentiary premises.
There were 82 penitentiary establishments which were categorized as follows: two “maisons de force”, thirty nine “maisons centrales” and forty one “maisons de sûreté”.
Given the poverty in the countryside, it sometimes happened that some persons arrived at prison already in poor health, so from time to time people did die in prison. The State was trying to cope with the problem of malnutrition and was working hard with non-governmental organizations on the issue.
In 2009, those who were convicted represented 52 per cent of the prison population, as opposed to those merely indicted, which reflected a reduction of the conviction to indictment ratio. Unfortunately, Madagascar had gone back to the initial state in 2010 and 2011, the principle reason being that the Ministry of Justice was not able to carry out all the necessary hearings that were scheduled in the work program due to the legal costs. Another reason was staff shortages, such as registrars and clerks.
Two cases of mistreatment in Manakara and Fort Dauphin prisons were currently being investigated. The delegation took note of the allegations of sexual blackmailing for food and allegations of rape of detainees, and the delegation would inform the relevant authorities. No complaint of those allegations had ever been recorded. Concerning detention in isolation, measures would be taken to change guidelines to be in line with international regulations. Sentencing often involved forced labour, but Madagascar intended to remove forced labour from its criminal code. Other reforms included a study underway on alternative sentences to incarceration, and ways to speed up the handling of course cases, as well as the construction of four new custodial facilities. Financial assistance was being considered in order to make the Commission of Prison Surveillance more effective.
The law on the reduction of preventive detention was not excessive (6-3-3 for an offence and 8-6-4 for a crime), especially because the judge did not have to use up the three detention periods. A complex criminal issue could justify a detention up to 18 months as a maximal detention.
The ongoing case of Rakotompanahy Andry Faly and three other employees of the MBS station would come to trial on 23 November 2011. Those persons were accused of threatening the security of the State by planting artisanal bombs in various areas of Antananarivo.
The operation of the National Human Rights Council would be become effective once the country had come out of the current crisis.
Madagascar had bilateral agreements for extradition with two countries: the Comoros Islands and France.
The Dina was a village-based convention of custodial law and its purpose was to preserve cohesion between the community, by handling civil litigation in the community. There had been situations where the Dina was dealing with criminal cases and applying repressive measures that were incompatible with the law. In order for the Dina to only handle civil disputes in the community and nothing more than that, the State intended to sensitize the population and the local authorities via the creation of a special brigade that would deal with illegal uses of the Dina and criminalize the use of the Dina to resolve criminal offences.
Human trafficking, including sexual exploitation of children, and forced labour were illegal, and the law made it possible to punish those infractions.
There was an Ombudsman, and he was an institutional mediator who orchestrated friendly settlements of disputes because of the poor functioning of the public sector. When the rights of a citizen were seriously violated, he could intervene.
Concerning the ratification of the second Optional Protocol and the abolition of death penalty, the debate on the usefulness of the abolition of death penalty needed more time, in order to change people’s minds about it.
Regarding violence against women, children and persons with disabilities, the delegation said that in order to fight early marriage, the age of marriage had been set at 18. If the age was lower, then the persons needed to ask for permission with local authorities and the marriage ceremony could be performed when the girl was under the age of 18. However, traditional chiefs and religious leaders, doctors, teachers, had engaged themselves in a campaign to reduce marriages of girls under 18 years of age.
With regard to the applicability of anti-torture law when military personnel was involved, the delegation said that the law 2008-008 was applicable when a member of the military personnel had committed acts of torture that fell under the description of article 2 of the law.
Madagascar needed support in the financial as well as administrative domain to implement its National Plan of Action, which showed the importance of the cooperation with the United Nations based in Madagascar.
Follow-up questions of the Experts
ABDOULAYE GAYE, Committee Expert who served as Rapporteur for the report of Madagascar, emphasized that the definition of torture really needed to be included in the Constitution. It seemed that the special intervention force was only involved in station-based activities, but when there was high risk they were not involved; they only intervened when armed criminals were involved. Who made that assessment, and was there an oversight system?
Members of Parliament had been arrested – did they not have parliamentary immunity, and if yes, had it been lifted? The Committee was worried about the length of police custody because of the distance issue involved. The persons concerned had a higher risk of torture. The delegation said that a lawyer was able to intervene from the start of the custody even if the detainee had no financial means – the Committee wished for more details on this.
The figures confirmed that there was prison over-crowding and that there were a lot of accused inmates in comparison to convicted inmates. How were the special hearings organized in criminal courts? Procedures were quite slow, and follow-ups needed to be speeded up.
Detention conditions had been elaborated on, and the conditions leading to deaths – the Committee and the State party needed to react to this with urgency.
With regard to extradition and non-refoulement: if the prosecution chamber felt that extradition was illegal, would this bind the Ministry of Justice? Did Madagascar have a procedure under which the legality of detention could be discussed, as in habeas corpus? How was protection organized for witnesses and plaintiffs?
It seemed that the Dina regularly handed down decisions in criminal cases, and that needed to end. Investigations needed to be carried out and criminal action needed to be taken. What did exactly the “implementation of the Dina” mean?
One issue of violence against women was that there were many cases of rape and spousal rape was not a crime. Concerning the exploitation of children and forced sexual exploitation, had the new law been used and how many people had been sentenced under that law? Was there a law about violence against women? Had complaints been brought under this law?
What was the status of refugees, as the questions raised by Ms Belmir on 10 November were not answered? An expert emphasized that a law on asylum needed to be adopted. Madagascar could also ratify the African Convention on Refugees. As regards to extradition, were the foreigners able to receive legal aid? Did Madagascar request diplomatic insurances from the countries to which it wanted to deport foreigners?
On article 14 and rehabilitation of victims, the Committee needed more details. Was it ruled out that any evidence obtained during torture could not be used?
What was being done to counter this phenomenon of exploitation of minors and young people on the streets?
There was currently no state of emergency in Madagascar, but what rights could be suspended during a state of emergency if it was reinstated? For instance forced labour was contemplated in the criminal code. The delegation said that the National Human Rights Commission would be made effective after the crisis, which indicated Madagascar was putting this off, which was regrettable.
As part of accountability, the State party had explained that a detainee could make a complaint of physical assault and bodily harm. There may be administrative as well as criminal responsibility.
How were the members of the gendarmerie investigated in case of allegations of torture?
An expert welcomed that the 2008 law had the same legal value as the provision set out in the criminal code and that it was going to be incorporated in it. On the statistics regarding the implementation of this law since 2008, did the delegation have at least a few examples?
It was regrettable that on the status of limitations, someone convicted of torture could not be convicted for longer than ten years, which was not that significant a length of time.
It was good that Madagascar considered training its doctors on the Istanbul Protocol but that was not enough; all persons in contact with inmates had to know about it.
Twelve days of pre-trial custody was rather long and the calculation system with the distance from the headquarters seemed a rather odd measure.
An expert stated that it was necessary to demolish the prison cells that measured one meter by one metre.
The prison conditions in Antananarivo were very concerning: pregnant women were left without proper medical attention, young girls were detained with adult women, and there was overcrowding of more than 2,000 inmates in a prison with a capacity of 800. Also, most of the people detained there were on pre-trial detention.
According to many non-governmental organizations, members of the Malagasi security forces continued to perform unlawful arrests and detentions. What were the intentions of the State party in order to face this?
The Chairperson then asked whether female genital mutilation was an issue in Madagascar. If yes, it needed to be tackled by the law and criminalized.
One Expert requested that Madagascar provide examples of the application of the law 2008 – 008 in their written responses. He also noted that detention could last twelve days because the detainees had to walk to the detention centres, which explained in part why there was this twelve day-authorization; but that was still had to be changed.
Responses by the Delegation
The specialised body called the Force d’Intervention Spéciale (FIS) had been established during the recent crisis. A lot of weapons circulated freely and the situation had to be dealt with. The population was very worried because road blocks had been set up by gangs and armed men, who often held war weapons. There was no oversight as monitoring could be dangerous and it was difficult to asses whether those men were armed or not.
The Ministry of Justice had done much to reverse the trend in the ratio that was referred to (accused/convicted in prison). In 2004 the situation was disastrous. By 2007 the situation was already a bit better. Mediation was going to be used as alternatives to custodial sentences, especially in the local communities.
The aim was to reach less than four per cent malnourishment of prison inmates.
With regard to extradition, there was no specific law yet except for the two agreements mentioned.
Concerning the Dina, an individual was arrested and detained by people in the community. The gendarmerie intervened and imprisoned three minors that had organized a detention and potentially put a victim at risk of lynching.
During the Universal Periodic Review, Madagascar agreed it would criminalize spousal rape if conditions allowed for it.
There had not been any situations where a court case had been cancelled as a result of hearing evidence extracted during torture. There had been a question on the difference between crime and offence regarding torture. Torture was considered to be a crime.
With regard to the declaration of the State of Emergency and prosecution of members of Parliament, they needed to have their parliamentary immunity removed. The Parliament had been dissolved.
There were series of conditions that had to be met if a State of Emergency was to be declared, in line with the regulations in the International Covenant on Civil and Political Rights.
There could be solitary confinement under the statutes of limitations.
Concerning a mechanism controlling the legality of detention, there was no such system, but the judges had to check the legality when they saw the accused.
The delegation said that female genital mutilation did not exist in Madagascar.
A law regarding the protection of women from violence specifically protected pregnant women. Laws also forbid sexual exploitation and trafficking. Women with disabilities were more vulnerable so there would soon be a law to specifically protect them.
With regard to the protection of children working on the street, there was a campaign in that vein and a programme had been created to get children off the streets.
The Ministry of Justice oversaw the work of the law enforcement personnel. The National Investigation Commission had been disbanded.
For use of the information media; not an official record