禁止酷刑委员会结束审议安道尔的报告(部分翻译)

禁止酷刑委员会

2013年11月12日

禁止酷刑委员会今日结束审议安道尔关于落实《禁止酷刑和其他残忍、不人道或有辱人格的待遇或处罚公约》规定的首次报告。

安道尔司法和内政部长泽维尔•埃斯波特•萨莫拉(Xavier Espot Zamora)在开始介绍报告时表示,虽然安道尔拥有700多年的历史,但它在1993年才获得国际认可,那一年安道尔通过了宪法。从那以后,安道尔将250多项公约和协议纳入其法律条款,包括《禁止酷刑公约》和1996年的《欧洲防止酷刑公约》。安道尔致力于改善拘押设施并使其更加现代化,给予囚犯全面且充足的健康和卫生关注。

如果嫌疑人要求,可用摄影机记录警察对嫌疑人的审讯,所有被拘留者字从拘押起就可获得免费的法律援助。安道尔也致力于缩短审前羁押的时间。

专家委员会注意到了安道尔广泛开展的人权培训,并对安道尔最近几年没有出现酷刑的报告案例表示赞扬。专家们询问了安道尔是否打算批准难民和无国籍人公约并就庇护、强行驱逐、驱回、引渡和国籍要求等问题提问。问题还涉及人口贩运、家庭暴力、肉刑、法律援助、该国单人监狱的条件以及司法和监狱官员的培训。

委员会副主席爱莎迪亚•布尔米尔(Essadia Belmir)在总结发言中对代表团极具建设性的对话和充满信息的答复表示感谢,并表示相信该国会积极落实委员会的建议。

埃斯波特•萨莫拉先生在总结发言中称安道尔希望跟进每一条建议,这将激励其打击酷刑和其他残忍、不人道或有辱人格待遇或处罚。

安道尔代表团包括安道尔刑事法庭的一名法官,来自司法和内政部、卫生和福利部、外交部和安道尔常驻联合国日内瓦办事处代表团的代表。

委员会将于11月13日(周三)中午12点和禁止酷刑小组委员会一同在万国宫再次举行公开会议。当天下午3点,委员会将在威尔逊宫举行公开会议,结束对吉尔吉斯斯坦第二次定期报告的审议(CAT/C/KGZ/2)。

报告

点击此处阅读安道尔首份报告(CAT/C/AND/1)。

Presentation of the Report

XAVIER ESPOT ZAMORA, Minister of Justice and the Interior of Andorra, said that the preparation of the initial report of Andorra had required significant efforts in terms of both human resources and time.  Andorra was doing its best to respect its international obligations in a timely manner. 

Andorra was a country with more than 700 years of history, but only in 1993 had the country received international recognition, thanks to the Constitution approved that year.  The Constitution lay out the clear commitment of Andorra to human rights.  Since then, Andorra had incorporated more than 250 conventions and agreements into its legal code.  In 2006, the Convention against Torture had entered into force, but already in 1996 Andorra had signed the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.  The clear commitment of Andorra to combat various actions endangering human rights was reflected in multiple aspects of the country’s legislation.

Immediate, decisive actions were taken by the public administration in cases of torture or inhuman treatment.  Advice and recommendations from the international bodies which dealt with the evolution and protection of human rights were a key element in the process of the transformation and adaptation of Andorra’s social structures. 

Efforts had been made to improve the infrastructure in detention facilities, equipping them with more material and human resources.  For example, doors had been installed into all cells, replacing the iron bars which had existed until then.   Various new modules had been made operational in 2013 for the detention of minors.  Minors were given schedules of comprehensive activities, and their re-socialization and rehabilitation were insured through a number of courses. 

Under the supervision of the coordinating medical officer, complete and adequate health and sanitary attention was given to prisoners.  Andorra was also working on the reduction of the duration of pre-trial detention.  From January 2014, penitentiary officers would attend specific training, in line with European and Andorran norms. 

Investigations of suspects conducted by the police could be recorded with both video and audio if the suspect so wished.  All detained persons were offered legal aid from the moment of detention. 

Questions by the Experts

ALESSIO BRUNI, Committee Expert and Rapporteur for the report of Andorra, said that no allegation of the act of torture regarding the State party had been brought to the attention of the Committee, which was a rare and welcome development. 

Had civil society been consulted in the process of drafting the report? 

Did the authorities of Andorra plan on undertaking steps to ratify the Optional Protocol and the 1951 Refugee Convention, along with its 1967 Protocol?

Could the mandate of the Ombudsman be aligned with the Paris Principles so that it covered all aspects of the protection of human rights?

The definition of torture from article 1 of the Convention could be directly invoked before judges.  Had that article already been invoked in Andorra’s courts, either by judicial or administrative organs?

Existing measures to guarantee the fundamental rights of persons in custody seemed satisfactory, but persons deprived of liberty should be allowed to receive a doctor of their choice at the expense of the State.

What did “illegal verbal isolation”, mentioned in Andorra’s Criminal Code, refer to?

Was there an absolute prohibition of torture, which could not be revoked regardless of conditions?  Was there an explicit mention of such provisions in Andorra’s law?  Was it included in the training of Andorra’s police forces? 

Regarding extradition and refoulement when there was a risk of torture for the extradited person, could the State party provide an update on any cases in the past three years?

Could sentences for crimes of torture be made harsher?  A maximum period of imprisonment which the legislation provided for grave crimes, such as genocide or torture, was only six years.

The statute of limitations was  a matter of concern because it lasted for only 10 years.  Could that period be extended?

Andorra had only one prison, which had been visited by the Committee in 2011.  At that time, the prison held 42 persons, whereas its capacity was 125 detainees.  No country in the world could boast such a low occupation rate.  Nonetheless, the State party reported that cells were occupied by a maximum of two prisoners, and three only if prisoners themselves so demanded.  Given that prison cells were 11 square meters large, having three persons there would make them somewhat crowded.  Why would detainees themselves request to be three in one cell?  Could more information be provided on criteria applied for managing the space available in cells?

It would be useful to receive information on concrete measures which had been taken on the matter of incommunicado detention.  Since 2008, no detainee had been reported to have been held in isolation for more than seven days. 

Could more details be provided with regard to the use of electric charge weapons by prison staff?  Was it being done on an exceptional basis?

Was there a legal framework to combat human trafficking and prostitution, given that Andorra was a country through which a high number of people were passing through?

XUEXIAN WANG, Committee Expert and Co-Rapporteur for the report of Andorra, stated that there had been no complaints about torture in the State party, which was welcomed by the Committee.

In the criminal legislation relating to racism and intolerance, were there provisions prohibiting public incitement of violence and hatred?

Did the law provide for granting asylum and refugee status?

Did the Criminal Code specifically criminalize trafficking in human beings?  Was there a specific provision criminalizing violence against women?

Given that the State party had accepted recommendations to prevent corporal punishment in all settings, what steps had been taken thus far in that regard?

Andorra reportedly lacked an independent body which would look into police misconduct, according to several European human rights reports. 

Were searches conducted before and after family visits?

Some prisoners were reportedly incarcerated for up to 8.5 months, and foreigners for up to one year, before being tried for robbery – was such data correct?

Was the State party planning to ratify the conventions on refugees and stateless persons?

Why did the State party not support a recommendation made by Sweden during the Universal Periodic Review to take all necessary measures to ensure the enjoyment of human rights in general by all non-citizens?

How were the justice and interior portfolios integrated in practice under one Ministry of Justice and the Interior?

An Expert said that questions were being asked with the view of ensuring that Andorra was on the right track.

How trained were the lawyers on the application of the Convention?  How independent was the legal profession in Andorra, and were lawyers prepared and capable to train others on the Convention?

A person in detention was granted legal aid and protection, but the person had the right to refuse it.  What was the rate at which suspects were waiving that right?  Was there a danger that such an exception became the rule?

If after being called, a lawyer did not appear within 45 minutes, the interview could begin without him.  What happened if lawyers were temporarily unavailable?  How often was that used or abused? 

Another Expert expressed admiration on how the State party had incorporated human rights instruments into its legislation. 

During the Committee visit in 2011, several positive and negative aspects had been noticed.   The State party reserved the use of electric shock weapons for “serious situations” – could more information be provided?

Comprehensive,  full-body searches during visits to prisoners seemed to be unjustified.

Since Andorra had acceded to the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, the issue which had often been brought up was the lack of monitoring of detention facilities.   Were there any plans to make monitoring visits more frequent?

Means of restraint in prison settings should be specified and a specific document on that matter elaborated.  Was anything being done in that respect?

There was a specific prohibition of the death penalty in the Constitution, which was a rare and welcome occurrence, another Expert noted.

How did the State party reconcile different international definitions of torture?

Regarding causes to refuse extradition, Andorra had listed the threat of the death penalty.  Was Andorra following up on cases of extradition with the view of ensuring that the extradited person was not mistreated?  Were there provisions for appeal against administrative decisions of expulsion?

Many of Andorra’s concerns had to do with the free movement, registration and refoulement of foreigners.  It seemed that there was no law on asylum, but some persons had nonetheless found refuge in Andorra.  Was there a specific law, or was it regulated under the Constitution?  Was there any law on the books which would provide subsidiary protection to such persons? 

When it came to unaccompanied minors, was their vulnerability being taken into account when deciding whether to grant them refugee status?

Were there provisions to provide shelter or refuge for women victims of domestic violence?

The Expert said that the Constitutional Court should be the final authority on whether somebody should be extradited, according to Andorra’s legislation.  Were there any extradition treaties in place with north African countries? 

Was Andorra planning to ratify the European Convention on Nationality?  How could one acquire Andorran nationality?

Another Expert inquired whether the Istanbul Protocol, Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, was applied and integrated in the existing training of the police.

How many cases of domestic violence had been brought to courts since 2000?

Could more information be provided about the treatment of persons in psychiatric hospitals?

CLAUDIO GROSSMAN, Chairperson of the Committee, said that discrimination was not included in the definition of torture.  How were the two interrelated in Andorra’s legislation?  While Andorra did not have a specific problem of racism, the goal was to have a unified approach across the board.

Regarding pre-trial detention, there had been a report of a prisoner kept for 8.5 months before being tried for theft and drug trafficking.  Such long periods of pre-trial detention were of concern to the Committee.  What were the delegation’s views on that matter? 

Isolation in detention could go up to 30 days according to Andorra’s legislation.  Could that period be extended?  Did the State party view such a provision as a problem, given that it could amount to an inhuman treatment?

Response by the Delegation

Responding to these questions and comments and others, the delegation said there were three criminal cases of alleged torture or cruel, unusual or degrading treatment or punishment in Andorra between 2012 and 2013.  The first was a complaint of sexual abuse and harassment committed by a prison warden towards an inmate sentenced for murder; the case had been referred to the Ministry of Justice which had launched an inquiry.  In 2013 that same inmate filed a second complaint, and both incidents were currently under investigation.  The third complaint was made against a prison warden for torture or cruel treatment.  It was also currently under investigation.  In addition a civil procedure had been brought against a police officer accused of inflicting degrading treatment on a person. 

The domestic legislation of Andorra, generally speaking, provided for hierarchy of statute which meant that ratified international treaties came above domestic laws.  The definition of torture in the Criminal Code was structured in two parts: a general part, as in the Spanish system, and a specialized part dealing with special definitions. 

Systematic prison inspections were carried out at all detention facilities.  Inspectors not only visited the institution but they inspected all areas, including cells.

Inmates were allowed to meet in private with the inspectors and tell them about any possible problems encountered in the facility or with prison officials.  Further joint prison visits with other bodies, such as the Bar Association, also took place.

Regarding cells in prison, most inmates had a cell to themselves, or two people shared a cell.  In a few cases there were three inmates sharing, if they’d made a special request, such as they were members of the same family.  Cells for two inmates were sixteen square metres.  Previously cell doors had bars, but following concerns that bars would impede on the privacy of inmates, they were replaced with mostly solid doors that just allowed the necessary levels of visibility for authorities.  Solitary confinement was a very exceptional measure, and only used for a maximum of 30 days.  The law was being changed to bring that maximum period down to seven days. 

There were no separate prison systems for juveniles, or minors, nor for persons with a disability.  The prison population of minors was, of course, very low, and for a long period there were no minors in an Andorran prison.  Minors were never sentenced to solitary confinement, although there was no prohibition of that by law and currently the maximum period was three days.  There were health safeguards for persons with disabilities in solitary confinement; if a physician said that the person’s health could not withstand solitary confinement a substitute penalty was applied. 

There were four electroshock weapons, known as Tasers, in Andorran prisons.  The Tasers were held in a strong box, locked away, and were only accessible to management personnel.  If a Taser was needed it could be requested from management and could only be used by someone who received on-going training on the weapon.  The Tasers had cameras and audio feed attached which monitored any discharge of electricity.  The discharge of electricity could not be for longer than five seconds.  Following the use of a Taser a full report had to be submitted on the circumstances surrounding its use.  Since 2007 to date, a Taser weapon had been used only four times.

Body searches were deemed to be potentially humiliating, and therefore were kept to a minimum.  Records of such searches were kept, and the practice had been modified to avoid the person subject to the search receiving a full body search.  The person would first remove their clothing from their torso, be searched and put them back on, then would remove their clothes from the waist down and be searched, before redressing.  

A delegate spoke in detail about how Andorra accomplished and fulfilled all elements of the Paris Principles, with a couple of exceptions.  One exception was the appointment of the Ombudsman, who was currently appointed by the President and approved by the Parliament.  Andorra could envisage making changes to be further in line with the Paris Principles in future.

Regarding the prohibition of torture in a time of war, the Constitution provided that no one should be subject to torture or cruel, degrading or inhumane treatment.  During a state of alarm (up to 15 days maximum), or a state of emergency (up to 30 days), both of which must be decreed by parliament, some rights under the Constitution could be suspended or limited.  However it was expressly decreed that Article 42 of the Constitution could not be suspended.  In no case was the right to physical or moral integrity compromised, or the right not to be subject to torture, it was confirmed. 

There was no specific protection against reprisals for any authority or State agent who refused to carry out an order of torture, or who happened to know another authority – e.g. a member of the police force – who had carried out an act of torture.  However, public officials were required to report any such wrongdoing, including acts of torture, and failure to do so resulted in disciplinary action.  Any official who had a complaint made against them was immediately removed from office, which helped avoid reprisals. 

Turning to the extradition procedure with regard to a risk of torture for a person being extradited, a delegate first spoke about the decision making process. 

First the government oversaw whether the requirements of an extradition request were met.  It then referred the case to the Public Prosecutor, and at that point had no more power or influence over the extradition itself, which was decided by the ordinary courts.  An appeal against an extradition ruling could be made to the Superior Court of Justice.  Exceptional circumstances could occur if a person applied for the special judicial protection of the writ of amparo, deeming that his rights were likely to be violated if extradited.  Andorra had no bilateral agreements on extradition, as its position within the European Commission was powerful enough for it not to require bilateral agreements.  Its only such agreement was with Morocco, for the transfer of sentenced persons or convicted prisoners. 

Responding to a specific question, a delegate said the Constitution covered the prohibition of the death penalty as a guiding principle of the State, and although such cases of extradition to a death-penalty-enforcing State had never arisen, it was unlikely that Andorran courts would agree to extradite a person who might face the death penalty. 

The replacement of a prison sentence by expulsion from Andorra could only take place if agreed by a court, and the expulsion decision was totally different from administrative expulsions.  Administrative expulsions were something different, they were handed down by the Criminal Code and fell under the remit of Immigration Law and were meant to prohibit access of a foreign person onto Andorran territory or interrupt that person’s residence.  Expulsion had two purposes – for a person who might be a national security threat to be removed, or administrative expulsion – and its maximum length could not be over 10 years, it must also be proportionate to the grounds on which it was granted.

The crime of torture carried a sentence of between one and six years, and also held that an official could not stand for public office for nine years.  In very serious cases a court could increase that sentence to nine years.  Under the terms of the statute of limitations the criminal responsibility could end after 10 years.  The delegation said they took note of the Committee’s position that the sentence for crimes of torture was too short and in future revisions of the Criminal Code may revise it.  It noted that crimes of genocide did not fall under a statute of limitations. 

Any new member of the police force received professional ethnics training, which included texts such as the Constitution, the Universal Declaration of Human Rights and other United Nations and Council of Europe conventions, as well as the national code of conduct.  Training on the Convention against Torture and human rights in general was also given to doctors.

Previously there was a time period of five hours between a person’s detention and the notification of their detention.  That period had now been abolished, and as soon as a person was detained a person of their choosing was contacted and informed.  Furthermore a detainee was visited not only by a forensic doctor, but also by a doctor of his or her choice and at his or her costs.  In 2014 legislative reform it was hoped to make that possibility an entitlement. 

Medical examinations of detainees, especially to determine if that person had suffered any bodily harm, took place under European protocols in full independence and compliance. 

Pre-trial detention was  generally limited to four months, but for the most serious crimes it could be extended by a judge.  If the person concerned did not agree to the extension then there was an appeal process; there were many checks and balances to the system which did not leave much room for abuse. 

There were rarely any cases where a person held in pre-trial detention was later cleared of the accusations against them. 

In general no legal mechanisms permitted incommunicado detention, a delegate confirmed, with small exceptions.  The possibility of incommunicado detention was only permitted by an examining magistrate in cases of procurement, terrorism, money laundering, drug trafficking or conspiracy, and if he or she considered there was a need to grant incommunicado detention, which could last a maximum of eight days.  Incommunicado detention meant the person could have no contact with third parties and no exchange of objects. 

Regarding psychiatric detention orders, a delegate said there was no separate psychiatric detention institution in Andorra.  Forced internment could be challenged through civil channels. 

Trafficking in persons was not in the Criminal Code but various separate articles did criminalize the following: trafficking in organs, slavery, procurement, sexual acts against minors, trafficking in children and labour exploitation.  Those articles could act together, such as slavery together with trafficking in children.

Domestic violence was a crime if injury was caused.  It was a specific crime in the Criminal Code committed by a spouse or a family member.  If there was no bodily injury it could still be considered ‘ill-treatment in the home’ or family-based violence.

Corporal punishment was considered to be a form of bodily harm, even though it was assault with a purpose, and it came within the scope of the Criminal Code.  Teachers were specifically prohibited from using corporal punishment and would receive sanctions if they did so. 

Follow-Up Questions by the Experts

What was the legal status of a refugee today, and who regulated their status?  As the State party had not ratified the Geneva Convention on Refugees, how was the state of asylum regulated?  Were there any aliens living in Andorra and could they pass on their nationality to children born in Andorra?

Andorra needed an independent oversight body of the police force, an Expert added. 

An Expert said the very low punishment of the crime of torture, of six years, would be subject to a recommendation from the Committee.  Regarding the use of electroshock weapons such as Tasers, a Committee Member said several States agreed that you could never be sure if that weapon could cause death.  Only last week a person died in a European State from having a Taser used on them.  The use of Tasers should be reserved for extreme cases only, such as hostage taking. 

Response from the Delegation

Regarding the use of psychiatric hospitals and institutions, a delegate clarified that persons who had not committed a crime and who needed to be treated for mental illness and be restrained were protected by a specific 2004 law that also dealt with people incapacitated by disability.  A delegate clarified that there was only one minor in Andorran prisons, who was facing trial for homicide.  There were 46 foreign nationals currently detained in Andorran prisons. 

Regarding electroshock weapons, a delegate reiterated that the weapon had only been used four times since 2007.  Their use was regulated, but perhaps a consequence of this dialogue would be to strengthen those regulations.  One of the four uses was when an inmate had been in a very agitated state for 10 to 15 minutes, was verbally and physically aggressive, and was unable to comply with orders from prison staff.  The person was throwing chairs at the prison staff, who responded by using the electroshock weapon. 

There were no national laws on refugees and it was true Andorra had not ratified the Geneva Convention, mainly because of Andorra’s geographical location – very few foreign nationals came to the country.  Only five Eritrean nationals had applied for asylum in Andorra; it was granted along with work  permits.  National legislation was adequate to provide asylum and other permits on an ad hoc basis. 

Concluding Remarks

ESSADIA BELMIR, Vice-Chairperson of the Committee, thanked the delegation for a very constructive dialogue and its informative answers and said she was sure the State party would act on the Committee’s recommendations in a positive manner. 

XAVIER ESPOT ZAMORA, Minister of Justice and the Interior of Andorra, thanked the Committee for an excellent dialogue and assured it that the delegation strove to answer every question in full and with transparency.  Andorra hoped to follow up on every recommendation, which would motivate it to fight against torture and other forms of cruel, inhuman or degrading treatment or punishment. 

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