COMMITTEE AGAINST TORTURE BEGINS REVIEW OF REPORT OF THE DEMOCRATIC REPUBLIC OF THE CONGO

Committee against Torture

21 November 2005


The Committee against Torture today began its consideration of the initial report of the Democratic Republic of the Congo on the efforts of that country to give effect to the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Marie-Madeleine Kalala, Minister of Human Rights of the Democratic Republic of the Congo, introduced the report, saying that the Democratic Republic of the Congo was particularly attached to the principles of democracy and fundamental human rights as contained in the Universal Declaration of Human Rights and subsequent international judicial instruments. The peace accord signed in Pretoria on 17 December 2002 had allowed for the end of the war which had bloodied the country for many years. It had also allowed for the setting in place of a new institutional order for managing the transition through the Transitional Constitution, which gave an important place to human rights and public freedoms. After long years of war which had caused more than 3.5 million deaths, the Democratic Republic of the Congo was today a post-conflict country, a country that was trying to get beyond the mass violation of human rights.

Serving as Rapporteur for the report of the Democratic Republic of the Congo was Committee Expert Guibril Camara who said the Committee welcomed countries that had experienced difficulties, whilst remaining committed to fulfilling their obligations and complying with international standards, as did the Democratic Republic of the Congo, as this was praise-worthy, and the leaders of the country were praised for their commitment. It was imperative for all States which wished to fulfil their contractual obligations to incorporate the definition of torture as contained in the Convention. The problem was application of these in practice, and there was a fundamental factor which was very important to the Committee; namely if standards such as those in the Convention were to be applied, then there had to be bodies with international standards that were responsible for applying them.

Fernando Marino Menendez, the Committee Expert serving as Co-Rapporteur for the report, said the report was quite limited, and there was not much on practical implementation by the Courts, and this would constrain the dialogue. There was a series of guarantees that had to be implemented in every country in order to live up to international obligations, and the Convention obliged the State party to systematically study the instructions contained therein, and examine their methods and interrogation practices. The cooperation between the Democratic Republic of the Congo and the International Criminal Court was established, and if this were to be conducted to a greater extent, it would be a positive sign for the international community.

Other Committee Experts raised questions on issues pertaining to, among other things, a request for more information on the practical aspects of implementation of various articles of the Convention; what was the judicial definition of children and juveniles, in particular in the context of imprisonment; practices for inspections of penal institutions and detention centres; issues linked to punishment within a prison setting; how capacity-building to produce this report and those to other treaty bodies had been organised; whether there were any sanctions available if those institutions which received human rights recommendations did not implement them; how human rights defenders were protected; and issues linked to impunity.

Also representing the delegation of the Democratic Republic of the Congo were representatives of the Mission of the Democratic Republic of the Congo to the United Nations Office at Geneva, the General Secretariat for Human Rights, and the Magistrature.

The delegation will return to the Committee at 10 a.m. on Tuesday 22 November to provide its response to the questions raised this morning.

The Democratic Republic of the Congo is among the 140 States parties to the Convention and as such it must present periodic reports to the Committee on how it is implementing the provisions of the Convention.

Report of the Democratic Republic of the Congo

The initial report of the Democratic Republic of the Congo (CAT/C/37/Add.6), says the Congolese Charter of Human Rights, adopted pursuant to the National Conference on Human Rights held from 25 to 30 June 2001, represents an unequivocal political commitment on the part of the Democratic Republic of the Congo. Article 19 of the Charter states: “Everyone is entitled to respect for their dignity and to be recognized as a person in the eyes of the law. All forms of exploitation and debasement of the individual, such as slavery, trafficking in persons, physical or mental torture and cruel, inhuman or degrading treatment, are prohibited.” There is no definition of torture in any constitutional, legislative or regulatory instrument referring to torture, and, contrary to the provisions of article 4 of the Convention, the Democratic Republic of the Congo has not made acts of torture, within the meaning of article 1 of the Convention, a specific violation.

The 80 years of Belgian colonization institutionalized physical punishment not only of detainees, but also of employees, regardless of whether they performed manual or office work. Corporal punishment was formally abolished only after the Democratic Republic of the Congo became independent on 30 June 1960. The lack of a truly democratic regime at the time of independence, followed by a long period of political instability, encouraged the systematic use of torture, particularly upon real or imagined political opponents. Owing to lack of information about human rights, torture victims think it normal to be subjected to ill-treatment in detention centers, which explains why complaints are rare. And if the victims belong to the political opposition, they believe that the courts will take no action anyway.

The war that has afflicted the Democratic Republic of the Congo since 1996 has not been conducive to the development of human rights, since half of the country has been outside the central Government’s control as a result of occupation by the armies of Rwanda, Burundi and Uganda and the rebel groups Rassemblement congolais pour la démocratie (RCD) and Mouvement de libération du Congo (MLC). The aforementioned States are thus answerable for any acts of torture or cruel, inhuman or degrading treatment perpetrated in wartime in the areas in question. The drafting of this report has allowed the authorities to provide up-to-date information on the legislative, administrative and judicial provisions relating to torture and on the difficulties encountered in gathering reliable statistics in this area. The authorities have now understood that if torture, within the meaning of article 1 of the Convention, is made a specific criminal offence it will be much simpler to implement the provisions of the Convention.

Presentation of Report

MARIE-MADELEINE KALALA, Minister of Human Rights of the Democratic Republic of the Congo, said the Democratic Republic of the Congo was particularly attached to the principles of democracy and fundamental human rights as contained in the Universal Declaration of Human Rights and subsequent international judicial instruments. This attachment was clearly demonstrated in the preambular part of the Transitional Constitution of the Democratic Republic of the Congo. The initial report should have been submitted to the Committee in 1997, but due to the political instability linked to the process of democraticisation that was underway since 1990 and its numerous consequences, this deadline had not been respected. The peace accord signed in Pretoria on the 17 December 2002 had allowed for the end of the war which had bloodied the country for many years. It had also allowed for the setting in place of a new institutional order for managing the transition through the Transitional Constitution, which gave an important place to human rights and public freedoms.

Concerned with implementing the normalisation of national life, the Transitional Government has deployed great efforts, notably through the implementation of pre-electoral operations and the formation of the Army and the restructured and integrated Police Force. The resolution of the Democratic Republic of the Congo to solve the problems due to the lateness of the presentation of its reports to the various treaty bodies was also to be understood in this context. The initial report, which was presented today, included an introduction, general information regarding the country, and the general judicial framework of protection against acts of torture, which latter section enumerated the principle international judicial instruments contributing to the protection of human rights. It also included information on how the Convention was implemented.

The legislation of the Democratic Republic of the Congo did not define torture as did the Convention. This was basically due to the inexistence of the repression of torture as an independent crime. However, this did not mean that torture had free reign in the country. The Constitution noted that no one could undergo torture or inhuman, cruel or degrading treatment. Certain provisions of the ordinary penal code as well as the military penal code noted that harm and other acts of violence committed by public officials or any other person were aggravating circumstances. Further, a number of reglementary texts foresaw and forbade acts of torture. Congolese legislature also tightly managed the situation of any person deprived of their freedom, stipulating the length of police custody, and forbidding secret detention. Torture was not an autonomous crime in the Democratic Republic of the Congo, and this lacuna impeded the appropriate repression of this act in all its dimensions, and therefore also impeded the full effect of the pertinent provisions of the Convention. A proposal for a new law had been elaborated, and was currently before the National Assembly, and it would be through this law that torture would be repressed.

After long years of war which had caused more than 3.5 million deaths, the Democratic Republic of the Congo was today a post-conflict country, a country that was trying to get beyond the mass violation of human rights. It fully understood the need for stability and peace, which were indispensable for the promotion of development. It was therefore determined to spare no effort to give full effect to the Convention.

Questions by Experts

GUIBRIL CAMARA, the Committee Expert serving as Rapporteur for the report of the Democratic Republic of the Congo, said the Committee had followed closely the trials and tribulations the delegation had suffered to get to the meeting, and appreciated the efforts it had made to fulfil its contractual obligations. The Committee welcomed countries that had experienced difficulties, whilst remaining committed to fulfilling their obligations and complying with international standards, as did the Democratic Republic of the Congo, as this was praise-worthy, and the leaders of the country were praised for their commitment. Restoring public order at domestic and international levels were very closely interconnected, and it was clear that this was understood by the Democratic Republic of the Congo and its leaders. It was an opportunity for the Committee to welcome these efforts.

Any of the constraints or obligations upon the State under the Convention should not be underestimated. Article 2, paragraph 2 of the Convention said that no exceptional circumstances of any nature should be deemed to justify torture, and Mr. Guibril asked how the authorities fulfilled this obligation. The absence of a definition of torture in domestic legislation had been mentioned, and the country was not the only one in this situation. The definition, pursuant to article 1 of the Convention was a fundamental principle, and should not be confused with violence and commonly-inflicted blows as defined in all criminal law. It was therefore imperative for all States who wished to fulfil their contractual obligations to incorporate this definition, and he asked how the new law impacted this.

Setting standards was not very difficult, Mr. Guibril said, even the most dictatorial States had the customary standards. The problem was application of these in practice, and there was a fundamental factor which was very important to the Committee; namely if standards such as those in the Convention were to be applied, then there had to be bodies with international standards that were responsible for applying them. How was the legal system organised and how did it function in this respect, he asked. What was the situation as regarded military jurisdiction, he asked, noting that there were many troops in the Democratic Republic of the Congo, asking whether they were competent to judge civilians, and whether the situation in this respect would change as the country changed under peace. How would the amnesty law be applied in order to ensure that there was no situation of impunity, was his final question. The Committee had two main concerns: the state of human rights defenders, NGOs and civil society, which was very important in a country in transition; and what measures were taken to protect the rights of human rights defenders, Mr. Camara concluded.

FERNANDO MARINO MENENDEZ, the Committee Expert serving as Co-Rapporteur for the report of the Democratic Republic of the Congo, said the report was quite limited, and there was not much on practical implementation by the courts, and this would constrain the dialogue. People needed to be trained in order to properly implement the law, and this included those for the arrest, custody and treatment of any person subjected to arrest or any form of imprisonment. Apart from the information the Committee had, Mr. Menendez asked what courses were organised and what was their frequency in order to convey this information to those working in law enforcement, and whether these included gender issues and dealt specifically with children, and were the authorities periodically updated on this situation. There was a series of guarantees that had to be implemented in every country in order to live up to international obligations, and the Convention obliged the State party to systematically study the instructions contained therein, and to examine their methods and interrogation practices.

On preventative custody or detention, this was a customary practice, Mr. Menendez noted, and asked if there were any statistics as to how many people were kept in preventative detention, and whether there was a register to this effect. There was a special Presidential Security Force, and he asked what was the specific status and statute of this Presidential Guard, and who ensured that they complied with the relevant rules and standards on detention. There had been accusations relating to the Kinshasa detention and penitentiary centre, and reports that there had been deaths, with no subsequent investigations, and no responsibility attributed, and the delegation should comment on this. Regarding sexual violence against female prisoners and rape of prisoners, he asked whether these were investigated, and whether there were any statistics on women prisoners and sexual violence. What inspection methods existed for prisons and detention centres, he asked.

On prompt and impartial investigation and inquiries into situations in which there was a well-grounded suspicion of torture, Mr. Menendez asked what was the real independence of judges and magistrates when it came to investigating any incident which could be torture, in particular in detention centres and penitentiaries. Further information on how such investigations were conducted and instigated was also required. The cooperation between the Democratic Republic of the Congo and the International Criminal Court was established, and if this were to be conducted to a greater extent, it would be a positive sign for the international community. Every State party should ensure that any person who alleged having been subjected to torture within its territory should have their case promptly examined by the authorities. Was there an official plan to protect the rights of human rights defenders, and had there been any investigations into violations of their rights, he asked. Were the public authorities aware of practices of private settlements of cases of torture, and did this mean that the State authorities remained aloof, he asked.

Other Committee Experts also raised a series of questions. An Expert said that the way out in such a difficult post-conflict situation was the strengthening of democratic institutions. Other issues raised included the results of specific cases of violations of human rights that included torture; a request for more information on the practical aspects of implementation of various articles of the Convention; what was the judicial definition of children and juveniles, in particular in the context of imprisonment and under what circumstances were they interrogated; practices for inspections of penal institutions and detention centres; issues linked to punishment within a prison setting and what this included; how capacity-building to produce this report and those to other treaty bodies had been organised; whether there were any sanctions available if those institutions which received human rights recommendations did not implement them; how human rights defenders were protected; and issues linked to impunity.

Responding briefly to a question, Ms. Kalala said that with regards to the drafting of the report, it had been possible due to the support of the Commission on Human Rights which had helped with capacity-building. It was an important concern of the Ministry of Human Rights to help change mentalities with regards to human rights, and it had held campaigns in this regard.
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