69. El Relator aprecia los esfuerzos realizados por el Gobierno con relación a la indemnización y rehabilitación de las victimas de tortura durante la dictadura militar, tales como la creación de la Comisión Nacional sobre Prisión Política y Tortura (recomendación (p) y (q)). Sin embargo, le siguen preocupando la falta de
investigaciones oficiales para determinar la responsabilidad directa por las graves violaciones de derechos humanos cometidas durante este periodo (CCPR/C/CHL/CO/5 para. 9). Al Relator también le preocupa el Decreto Ley de Amnistía 2.191 de 1978.
Aunque el Gobierno ha precisado que este decreto ya no es aplicado por los tribunales, el hecho de que continúe vigente deja abierta la posibilidad de su aplicación (ver
CCPR/C/CHL/CO/5 para. 5).
70. Si bien este tema no fue abordado en sus recomendaciones, el Relator Especial expresa su preocupación por la legislación indebidamente restrictiva del aborto,
especialmente en casos en que la vida de la madre esté en peligro (ver
CCPR/C/CHL/CO/5 para. 5). El Relator insta al Gobierno a garantizar la implementación de la recomendación del Comité contra la Tortura con relación a la eliminación de la práctica de extraer confesiones a efectos de enjuiciamiento de las mujeres que buscan atención médica de emergencia como resultado de abortos clandestinos (CAT/C/CR/32/5 para. 7 (m)).
71. Finalmente, aunque el Relator reconoce los esfuerzos del Gobierno chileno al respecto, lamenta que aun no se haya implementado su recomendación de establecer una institución nacional de derechos humanos (recomendación (t)).
China
Follow-up to the recommendations made by the Special Rapporteur in the report of his visit to China in November 2005 (E/CN.4/2006/6/Add.6, para. 82).
72. The Special Rapporteur appreciates the continued cooperation of the
Government with the mandate, and looks forward to receiving information on its efforts to implement the recommendations. He reaffirms that he stands ready to assist China in its efforts to prevent and combat torture and ill-treatment.
Investigation and prosecution of torture
73. Recommendation (a) stated: The crime of torture should be defined as a matter of priority in accordance with article 1 of the Convention against Torture, with penalties commensurate with the gravity of torture.
74. According to non-governmental sources, the recommendations issued by the Special Rapporteur in his 2006 report identified six key areas in which legislative and other changes were necessary to reduce the prevalence of torture in prisons and other detention facilities. Those recommendations focused on ways to increase prevention and investigation. Several legislative changes have been adopted since the report, including the “Six prohibitions for prison guards” and “Six prohibitions for RTL guards”
(Ministry of Justice, 14 February 2006), aimed at preventing abuse in detention, and the
“Regulations on filing cases standard on infringing rights by dereliction of duty”
(Supreme People’s Procuratorate, 26 July 2006), aimed at investigating abuses. In addition, reforms to the death penalty system aimed at reducing the number of executions, are a positive sign that criminal law reform is possible. Furthermore, instituting a system of review may ensure that cases of wrongful conviction are overturned before executions are carried out. However, while these regulations are necessary improvements, they lack adequate methods of enforcement. Not a single change has been made to the criminal or criminal procedure laws. Necessary changes would include the provision of a comprehensive definition of torture in line with article 1 of the Convention against Torture; adoption of fair trial guarantees as provided for in the International Covenant on Civil and Political Rights (ICCPR), to which China is a
signatory; and the abolition of administrative forms of detention, including Reeducation- Through-Labor (RTL). Despite the recommendation of these changes in the Special Rapporteur’s 2006 report, such changes have gone unimplemented.
75. Recommendation (b) stated: All allegations of torture and ill-treatment should be promptly and thoroughly investigated by an independent authority with no connection to the authority investigating or prosecuting the case against the alleged victim.
76. Recommendation (c) stated: Any public official indicted for abuse or torture, including prosecutors and judges implicated in colluding in torture or ignoring evidence, should be immediately suspended from duty pending trial, and prosecuted.
77. Recommendation (d) stated: The declaration should be made with respect to article 22 of CAT recognizing the competence of the Committee against Torture to receive and consider communications from individuals who claim to be victims of a violation of the provisions of the Convention.
Prevention of torture and ill-treatment through safeguards in the criminal justice system
78. Recommendation (e) stated: Those legally arrested should not be held in facilities under the control of their interrogators or investigators for more than the time required by law to obtain a judicial warrant of pre-trial detention, which normally should not exceed a period of 48 hours. After this period they should be transferred to a pre-trial facility under a different authority, where no further unsupervised contact with the interrogators or investigators is permitted.
79. Recommendation (f) stated: Recourse to pre-trial detention in the Criminal Procedure Law should be restricted, particularly for non violent, minor or less serious offences, and the application of non custodial measures such as bail and recognizance be increased.
80. Recommendation (g) stated: All detainees should be effectively guaranteed the ability to challenge the lawfulness of the detention before an independent court, e.g. through habeas corpus proceedings.
81. Recommendation (h) stated: Confessions made without the presence of a lawyer and that are not confirmed before a judge should not be admissible as evidence. Video and audio taping of all persons present during proceedings in interrogation rooms should be expanded throughout the country.
82. Recommendation (i) stated: Judges and prosecutors should routinely inquire of persons brought from police custody how they have been treated and in any case of doubt (and even in the absence of a formal complaint from the defendant), order an independent medical examination.
83. Recommendation (j) stated: The reform of the CPL should conform to fair trial provisions, as guaranteed in article 14 of ICCPR, including the following: the right to remain silent and the privilege against self incrimination; the effective exclusion of evidence extracted through torture; the presumption of innocence;
timely notice of reasons for detention or arrest; prompt external review of detention or arrest; timely access to counsel; adequate time and facilities to prepare a defence;
appearance and cross examination of witnesses; and ensuring the independence and impartiality of the judiciary.
84. Recommendation (k) stated: The power to order or approve arrest and supervision of the police and detention facilities of the procurators should be transferred to independent courts.1
85. Recommendation (l) stated: Section 306 of the Criminal Law, according to which any lawyer who counsels a client to repudiate a forced confession, for example, could risk prosecution should be abolished.
Other measures of prevention
86. Recommendation (m) stated: The Optional Protocol to the Convention against Torture should be ratified, and a truly independent monitoring mechanism be established where the members of the visiting commissions would be appointed for a fixed period and not subject to dismissal to visit all places where persons are deprived of their liberty throughout the country.
87. Recommendation (n) stated: Systematic training programmes and awareness raising campaigns should be carried out on the principles of the Convention against Torture for the public at large, public security personnel, legal professionals and the judiciary.
1 A similar recommendation was made by the Working Group on Arbitrary Detention, E/CN.4/2005/6/Add.4, 29 December 2004, para 78.
88. According to non-governmental sources, although none of the recommendations made by the Special Rapporteur specifically address the need to enhance transparency and declassify information related to torture and abuse in detention facilities, this is the primary challenge to addressing torture in China, where secrecy is the norm. Access to accurate, reliable, and comprehensive information is vital to both preventing torture and investigating and prosecuting torture where it exists. Yet virtually all necessary baseline information is classified under the state secrets system, effectively preventing any action on torture in detention facilities in China. Classified information includes: information on the detention and reform of prisoners of influence currently serving sentences;
statistics on unusual deaths in prisons and other detention facilities; data on instances of police officers causing injuries or disabilities to prisoners; and instances of police officers violating the law or codes of discipline. In addition to specific pieces of information, the state secrets system also provides for retroactive classification of
information when there is a perceived harm. As a result, potentially sensitive information remains shrouded in secrecy, either because it is already classified, or because the limits of classification are unclear. Potentially serious sanctions—ranging from administrative to criminal—can be imposed when information is disclosed, divulged, or leaked.
Information on torture and abuse in prison is therefore not easily accessible, allowing abuses to go unchecked, and preventing effective implementation of reforms.
89. Recommendation (o) stated: Victims of torture and ill-treatment should receive substantial compensation proportionate to the gravity of the physical and mental harm suffered, and adequate medical treatment and rehabilitation.
Circumstances surrounding capital punishment
90. Recommendation (p) stated: Death row prisoners should not be subjected to additional punishment such as being handcuffed and shackled.
91. Recommendation (q) stated: The restoration of Supreme Court review for all death sentences should be utilized as an opportunity to publish national statistics on the application of the death penalty.
92. Recommendation (r) stated: The scope of the death penalty should be reduced, e.g. by abolishing it for economic and non violent crimes.
Deprivation of liberty for political crimes
93. Recommendation (s) stated: Political crimes that leave large discretion to law enforcement and prosecution authorities such as “endangering national security”,
“subverting State power”, “undermining the unity of the country”, “supplying of State secrets to individuals abroad”, etc. should be abolished.
94. According to non-governmental sources, the recommendations by the Special Rapporteur highlighted the importance of abolishing political crimes, which provide authorities wide discretion in detaining individuals simply for the peaceful exercise of freedom of expression. The recommendations correctly identified particularly
problematic charges, including “endangering national security,” “subverting State power,” and “leaking state secrets abroad.” These crimes are vague and ill defined. In 2006 and 2007, authorities continued to detain human rights defenders on the
aforementioned charges simply for their participation in peaceful activities. A new trend has emerged, however, such as the use of seemingly unrelated and non-political charges to target human rights defenders. These charges include “intentional destruction of property” (Mao Hengfeng), “organizing a mob to disrupt traffic” (Chen Guangcheng), and “illegal business activity” (Guo Feixiong, also known as Yang Maodong). These individuals were all detained in relation to rights defence work, including petitioning and providing legal advice on sensitive cases.
95. Recommendation (t) stated: All persons who have been sentenced for the peaceful exercise of freedom of speech, assembly, association and religion, on the basis of vaguely defined political crimes, both before and after the 1997 reform of the CL, should be released.
Forced re-education
96. Recommendation (u) stated: “Re education through Labour” and similar forms of forced re education in prisons, pre-trial detention centres and psychiatric hospitals should be abolished.
97. Recommendation (v) stated: Any decision regarding deprivation of liberty must be made by a judicial and not administrative organ.
Follow-up
98. Recommendation (w) stated: The Special Rapporteur recommends that the Government continue to cooperate with relevant international organizations, including the Office of the United Nations High Commissioner for Human Rights, for assistance in the follow up to the above recommendations.
Colombia
Seguimiento dado a las recomendaciones del Relator Especial reflejadas en su informe sobre su visita a Colombia en octubre de 1994 (E/CN.4/1995/111, párr. 115-132).
99. Mediante cartas con fecha 21 de noviembre de 2007 y 4 de febrero de 2008, el Gobierno proporcionó información actualizada sobre la implementación de las
recomendaciones del Relator Especial, la cual complementa la información enviada anteriormente (véase por ej. A/HRC/4/33/Add.2, párrs 154 a 188).
100. Después de 13 años de su visita a Colombia, el Relator Especial se complace en observar la adopción por parte del Estado colombiano de varias leyes internas esenciales para la prevención y represión de actos de tortura y malos tratos. En particular, se destaca el nuevo Código Penal (Ley Nº 599/2000), el cual tipifica el delito de tortura y estipula que la obediencia debida no será considerada como causa eximente de responsabilidad
