Paraguay - Concluding Observations of the Committee against Torture - Consideration of Reports submitted by States Parties under Article 19 of the Convention [2011] UNCATCO 18; CAT/C/PRY/CO/4-6 (14 December 2011)

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	United Nations	CAT/C/PRY/CO/4-6
	Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment		Distr.: General 14 December 2011 English Original: Spanish

Consideration of reports submitted by States parties under article 19 of the Convention

1. The Committee against Torture considered the combined fourth to sixth periodic reports of Paraguay (CERD/C/PRY/4-6) at its 1026th and 1029th meetings (CAT/C/SR.1026 and SR.1029), held on 3 and 4 November 2011. At its 1048th meeting (CAT/C/SR.1048), held on 21 November 2011, the Committee adopted the following concluding observations.

2. The Committee welcomes the submission by Paraguay of its combined fourth to sixth periodic reports in response to the list of issues prior to the submission of reports (CAT/C/PRY/Q/4-6). The Committee expresses its appreciation to the State party for agreeing to follow this new procedure for the submission of periodic reports, which facilitates cooperation between the State party and the Committee and helps focus the consideration of the report as well as the dialogue with the delegation.

3. The Committee also appreciates the frank and open dialogue it had with the delegation of the State party and the supplementary information supplied during its consideration of the report, although it regrets that some of its questions to the State party were not answered.

4. The Committee notes with satisfaction that the State party has ratified or acceded to the following international instruments since the consideration of its third periodic report:

5. The Committee is pleased to note that the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment visited the State party in March 2009 and made a follow-up visit in September 2010, and that the State party has authorized the publication of the Subcommittee’s reports and submitted its written replies thereto.

6. The Committee congratulates the State party on the declaration it made on 29 May 2002 recognizing the competence of the Committee to receive communications under articles 21 and 22 of the Convention against Torture.

7. The Committee notes with satisfaction that in 2003 the State party extended a standing invitation to visit the country to all Human Rights Council special procedure mandate holders. Since the consideration of its last periodic report, the State party has hosted visits from four of the Council’s rapporteurs, including the Special Rapporteur on the question of torture.

8. The Committee takes note of the State party’s initiatives to review its legislation with a view to complying with the Committee’s recommendations and improving implementation of the Convention. These initiatives include the following:

9. The Committee also welcomes the efforts made by the State party to modify its policies and procedures so as to enhance human rights protection and implement the Convention, especially:

10. The Committee notes that a bill has been drafted to amend the current legal definition of torture. However, it regrets that, despite its own previous recommendations and those of various regional and international human rights mechanisms, the offence of torture is still not defined in the State party’s Criminal Code in accordance with the definition in article 1 of the Convention (arts. 1 and 4).

The Committee reiterates its earlier recommendation (A/55/44, para. 151) that the State party should adopt a definition of torture that covers all the elements contained in article 1 of the Convention. The State party should also ensure that such offences are punishable by appropriate penalties which take into account their grave nature, in accordance with article 4, paragraph 2, of the Convention.

11. The Committee is concerned that many of the human rights of persons deprived of their liberty, including minors, as set out in Paraguayan legislation, are not observed in practice. In particular, the Committee expresses concern at the lack of mechanisms to give effect to the right of persons deprived of their liberty to legal assistance from the very start of detention and to independent medical examinations, and their right to notify a relative or trusted individual of their detention and to be informed of their rights and the grounds for arrest at the time of detention. With regard to habeas corpus, the Committee is concerned by information it has received that habeas corpus petitions can take 30 days to be resolved. As regards medical examinations at the start of detention, the Committee is concerned that these are not routinely carried out and that they take place in the presence of police officers. It is also concerned by reports that persons deprived of liberty are held in police custody for long periods without being properly registered and that a large number of police stations do not, in practice, comply with the rules on registration procedures for detainees. In general, the Committee expresses concern at the statement by the delegation from the State party that there are problems with the nationwide implementation of Decision No. 176/2010 of the Office of the National Police Commander, ordering the introduction of a registration system in police stations (arts. 2, 11 and 12).

The State party should take prompt and effective action to ensure that all detainees benefit in practice from all fundamental legal safeguards from the time of their detention. The State party should guarantee that, in practice, all detainees are informed immediately of the reason for their detention and of their rights, and that their right to have access to a lawyer and to contact a relative or trusted individual is guaranteed. The remedy of habeas corpus should be reviewed and strengthened and the necessary steps taken to ensure that the procedure granting it is summary and brief and that decisions on it are taken within the legal time limit in every case. The State party should guarantee that individuals in police custody are able to undergo an independent medical examination at the very start of their detention and not in the presence of a police officer. The State party should make certain that persons deprived of their liberty are registered promptly and ensure that the custody records in police stations are inspected regularly to check that they are being maintained in accordance with the procedures established by law. The State party should also ensure that the provisions of Decision No. 176/2010, on registration of detainees, are observed and, to that end, should consider making said decision law.

12. While welcoming the recent adoption of the Organization Act on the Public Defender Service and the increased human resources allocated to it, the Committee expresses concern at the limited number of public defenders in the country, which prevents many persons deprived of their liberty from receiving adequate legal assistance.

The State party should guarantee free legal assistance from the very start of detention for all persons requesting such assistance who do not have the means to pay for it themselves. To this end, the State party should improve working conditions in the Public Defender Service and allocate more human, financial and material resources to the institution to enable it to perform its duties.

13. The Committee takes note of the declaration, in Act No. 4473 of 10 October 2011, of a 60-day state of emergency in the departments of Concepción and San Pedro. The Committee notes with concern that other states of emergency have been declared during the period covered by the State party’s report. Despite the information provided by the State party on the steps taken to safeguard the human rights of the persons affected, the Committee is concerned about restrictions on human rights in this period, as well as about potential violations of the Convention during the state of emergency.

The State party should limit the declaration of a state of emergency to cases in which it is strictly necessary, and should at all times respect the provisions of article 4 of the International Covenant on Civil and Political Rights. The State party should also adhere strictly to the absolute prohibition of torture, in accordance with article 2, paragraph 2, of the Convention, which states that no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.

14. The Committee welcomes the appointment in 2001, after a seven-year wait, of the State party’s first national ombudsman. The Committee is concerned, however, that, according to the delegation of the State party, the mandate of the current ombudsman has expired and that no suitably qualified successor has as yet been appointed. The Committee is also concerned that the Office of the Ombudsman does not have the necessary resources to accomplish its task of independently and effectively protecting and promoting human rights (art. 2).

The Committee recommends that the State party take the necessary steps to appoint a new, suitably qualified ombudsman as soon as possible, in accordance with the procedure established by law. The State party should equip the Office of the Ombudsman with sufficient financial, material and human resources to carry out its mandate effectively and independently, in accordance with the Paris Principles (annex to General Assembly resolution 48/134 of 20 December 1993).

15. The Committee takes note with interest of the information supplied by the delegation of the State party on the efforts under way to operationalize the national preventive mechanism established by Act No. 4288. Nonetheless, the Committee notes with concern that the State party's national preventive mechanism should have been established in 2007 and is still not operational.

The State party should speed up the implementation of the law establishing the national preventive mechanism, in particular by forming the selection body provided for by this law soon. The State party should ensure that this mechanism has the human, material and financial resources it needs to carry out its mandate independently and effectively throughout the country.

16. The Committee is deeply concerned about repeated allegations of widespread corruption in the prison system and police force in the State party. It has been alleged that persons deprived of their liberty have to bribe public officials in order to receive medical treatment or food or to receive visits. The Committee is also concerned about the unjustified granting of benefits to certain individuals deprived of their liberty that occurs as a result of corruption. The Committee notes with regret that the State party has not provided information on these issues (arts. 2, 10 and 12).

The State party should take immediate and urgent measures to eradicate corruption in the police force and prison system, which is an obstacle to the effective implementation of the Convention. These measures should include audits to identify corrupt behaviour and risks of corruption, as well as recommendations on how to ensure internal and external controls. The State party should also increase its capacity to investigate and try cases of corruption. In addition, the State party should organize training, awareness-raising and capacity-building programmes on fighting corruption and on the relevant professional codes of ethics, for police and other law enforcement officers, prosecutors and judges, and it should establish, de facto and de jure, effective mechanisms to ensure transparency in the conduct of public officials. The Committee requests the State party to keep it informed of any steps taken and any difficulties encountered in the fight against corruption. The Committee also requests the State party to supply information on the number of State officials, including senior officials, who have been tried and punished for corruption.

17. The Committee is concerned about the allegations received concerning extraditions carried out by the State party without it having examined the risk of the person extradited being tortured in the receiving country. The Committee is also concerned about the lack of specific training for members of the judiciary regarding the scope of article 3 of the Convention (art. 3).

The State party should formulate and adopt legal provisions to incorporate article 3 of the Convention into its domestic law and ensure that the provisions of that article are applied in cases of expulsion, refoulement or extradition of foreign citizens. Under no circumstances should the State party expel, return or extradite a person to another State where there are substantial grounds for believing that he or she would be in certain danger of being subjected to torture or ill-treatment.

18. The Committee is concerned about the numerous and consistent allegations of torture and ill-treatment of persons deprived of their liberty, in particular by police officers. The Committee regrets the lack of any consolidated statistics on complaints of torture, investigations and the penalties handed down during the period covered by the State party’s report. The Committee takes note of the statistics provided in the State party’s report concerning disciplinary proceedings against police officers; however, it notes that the statistics do not indicate how many of those cases have been brought to court. The Committee is also concerned that, according to the information provided in the State party’s report, during 2009 there were only nine complaints of torture in the State party’s prisons. The Committee considers that the figures do not tally with the persistent allegations and extensive documentation received from other sources concerning cases of torture and ill-treatment of persons deprived of their liberty. The Committee is further concerned by the limited effectiveness of police monitoring and supervision mechanisms and the lack of compensation and rehabilitation services for victims of torture and ill-treatment (arts. 2, 12–14 and 16).

19. The Committee is concerned about the habitual and widespread use of pretrial detention, which may undermine the right to presumption of innocence, rather than non-custodial measures. The Committee is also concerned by the failure to respect the maximum legal period for pretrial detention and by the existence in the State party of legislation that restricts the possibility of using alternatives to preventive detention. The Committee is especially concerned by the extensive use of pretrial detention for children aged between 16 and 18 years. The Committee notes with concern the abundant information received from various sources on the deplorable material conditions in many of the State party’s police stations and prisons, the overcrowding in them, the inadequate medical services and the almost complete lack of activities for persons deprived of their liberty. In particular, the Committee is concerned about the material conditions in the psychiatric ward of the national prison in Tacumbú and the lack of specialized medical attention provided to the prisoners housed there. The Committee is further concerned about allegations of discrimination against the lesbian, gay, bisexual and transgender community in the State party’s prisons, including discrimination in allowing private visits from partners. Lastly, the Committee is concerned about the arbitrary use of solitary confinement as a punishment in the State party’s prisons (arts. 2, 11 and 16).

The State party should take effective measures to ensure that its policy of pretrial detention is in conformity with international standards and that pretrial detention is used solely as a last resort and for a limited period, in conformity with the requirements laid down in its legislation. To this end, the State party should review the use of pretrial detention as a primary measure for accused persons awaiting trial and consider the possibility of using alternatives to deprivation of liberty, as described in the United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules), adopted by the United Nations General Assembly in its resolution 45/110, in particular in cases involving minors. The State party should also increase judicial control over the duration of pretrial detention.

The State party should adopt urgent measures to ensure that detention conditions in police stations, prisons and other detention centres are in conformity with the United Nations Standard Minimum Rules for the Treatment of Prisoners, adopted by the Economic and Social Council in its resolutions 663 C (XXIV) and 2076 (LXII). In particular, the Committee recommends that the State party should:

20. The Committee expresses its concern at reports that, in spite of the provisions of article 90 of the Code of Criminal Procedure prohibiting the use of force by the police to obtain a statement from a detained person, in practice the police continue to obtain statements by torture or ill-treatment. The Committee is concerned that the courts of the State party occasionally use such statements as evidence. The Committee is also concerned by the lack of information relating to officials who have been tried and punished for having obtained statements in this way (arts. 2, 4, 10 and 15).

The State party should take the necessary steps to ensure that all statements obtained as a result of torture are inadmissible in any court proceedings, in conformity with article 15 of the Convention. The Committee requests the State party to ensure in practice the inadmissibility of evidence obtained as a result of torture and to provide it with information on whether any officials have been tried and punished for having obtained statements in this way, together with examples of cases that have been set aside because a statement had been obtained as a result of torture. The State party should also ensure the provision of training for law enforcement officials, judges and lawyers on the methods used to detect and investigate cases in which statements have been obtained by torture.

21. The Committee takes note of the different measures adopted by the State party to combat violence against women, which include providing five police stations with the resources to register complaints of domestic violence. It also takes note of the implementation in seven public hospitals of the National Programme for Prevention and Comprehensive Care for Victims of Gender Violence and of the introduction of custodial penalties to punish acts of domestic violence. However, the Committee is concerned by the lack of a specific law to prevent, punish and eradicate violence against women, particularly sexual abuse, domestic violence and violent killings of women, in spite of the high incidence of such violence in the State party (arts. 2, 12, 13 and 16).

The State party should intensify its efforts to ensure the implementation of urgent and effective protective measures to prevent and combat all forms of violence against women and girls, particularly sexual abuse, domestic violence and violent killings of women. Such measures should include, in particular, the rapid adoption of a law to prevent, punish and eradicate violence against women that is in conformity with the Convention on the Elimination of All Forms of Discrimination against Women and with general recommendation No. 19 of 1994 on violence against women of the Committee on the Elimination of Discrimination against Women. The State party should also undertake broad awareness-raising campaigns and provide training courses on the prevention of violence against women and girls for officials who are in direct contact with victims (law enforcement officers, judges, lawyers, social workers, etc.) and for the general public.

22. The Committee notes with concern the general prohibition of abortion in article 109 of the Criminal Code, which applies even to cases of sexual violence, incest or when the foetus is not viable, with the sole exception of cases where the foetus dies as an indirect result of an intervention that is necessary to avert a serious threat to the life of the mother. This means that the women concerned are constantly reminded of the violation committed against them, which causes serious traumatic stress and carries a risk of long-lasting psychological problems. The Committee also notes with concern that women who request an abortion under the circumstances described above are punished. The Committee is also concerned about the denial of medical care to women who have decided to have an abortion, which could seriously jeopardize their physical and mental health and could constitute cruel and inhuman treatment. The Committee expresses its deep concern that illegal abortions are still one of the main causes of mortality among women. The Committee also notes with concern that medical professionals can be investigated and punished by the State party for practising therapeutic abortions. The Committee is also concerned that medical professionals have reported abortions that have come to their knowledge under the protection of professional secrecy, in violation of the profession’s code of ethics (arts. 2 and 16).

The Committee urges the State party to review its legislation on abortion, as recommended by the Human Rights Council, the Human Rights Committee, the Committee on the Elimination of Discrimination against Women and the Committee on Economic, Social and Cultural Rights in their latest concluding observations, and to consider providing for further exceptions to the general prohibition of abortion, in particular for cases of therapeutic abortion and pregnancy resulting from rape or incest. The State party should, in accordance with the guidelines issued by the World Health Organization, guarantee immediate and unconditional treatment for persons seeking emergency medical care. The State party should also take measures to preserve confidentiality between doctors and patients when medical care is provided for complications arising from an abortion.

23. The Committee recognizes the efforts made by the State party to address trafficking in persons, including the creation of the Inter-Agency Committee to Prevent and Combat Human Trafficking and special units in the National Secretariat for Children and Adolescents and the Secretariat for Women, the establishment of a centre to provide comprehensive support for trafficking victims and the drafting of a bill to combat trafficking in persons. The Committee notes with interest the opening of a temporary shelter for trafficking victims, but observes that the shelter has limited space and only receives female victims. The Committee is concerned that Paraguay continues to be both a source and transit country for human trafficking and regrets the lack of comprehensive information on trafficking cases and convictions (arts. 2, 10 and 16).

The State party should ensure that all allegations concerning the trafficking of persons are investigated promptly, impartially and thoroughly and that the offenders are prosecuted and punished for the crime of trafficking in persons. The State party should continue to conduct nationwide awareness-raising campaigns, provide adequate programmes of assistance, recovery and reintegration for victims of trafficking and offer training to law enforcement officers, judges, prosecutors, migration officials and border police on the causes, consequences and repercussions of trafficking and other forms of exploitation. In particular, the State party should make every effort to implement the National Plan for the Prevention and Elimination of the Sexual Exploitation of Children and Adolescents and ensure it is allocated the necessary human and financial resources. The Committee further recommends that the State party increase its efforts to establish systems and mechanisms of international, regional and bilateral cooperation with countries of origin, transit and destination in order to prevent, investigate and punish cases of human trafficking.

24. The Committee takes note of the information in the report of the State party on training schemes for the Armed Forces, prosecutors and members of the national police but regrets that so little information is available on the evaluation of those schemes and their effectiveness in reducing the incidence of torture and ill-treatment. In particular, the Committee regrets the lack of information on the training provided on the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Istanbul Protocol) to personnel involved in the investigation and identification of torture and ill-treatment (art. 10).

25. The Committee takes note of the information provided in the report of the State party on the financial compensation awarded to victims of human rights violations, including torture, committed during the period 1954–1989. The Committee regrets not having received information on the implementation of rehabilitation measures, such as psychological assistance or training, for such victims. The Committee also regrets the total lack of information on measures to compensate victims of acts of torture committed after the dictatorship (art. 14).

The State party should ensure that the appropriate steps are taken to provide the victims of torture and ill-treatment with redress, including fair and adequate compensation, and the fullest possible rehabilitation.

In its next periodic report, the State party is asked to provide the Committee with statistics and full details of cases in which victims have obtained full redress, including investigation and punishment of the perpetrators, compensation and rehabilitation.

26. The Committee takes note of the measures taken to prohibit corporal punishment of children living with their mothers in places of detention or in shelters. The Committee also takes note of the information provided by the State party delegation on the existence of a bill to prohibit corporal punishment. However, the Committee is concerned that corporal punishment in the home is still not prohibited (art. 16).

The Committee recommends that the State party explicitly prohibit corporal punishment of children in all settings, including in the home.

27. The Committee takes note of the measures already taken by the State party to comply with the judgements and decisions handed down within the Inter-American human rights system on the protection of indigenous peoples in the territory of the State party. The Committee also takes note of the measures taken in collaboration with the International Labour Organization to combat the exploitation of indigenous peoples for their labour. However, the Committee is concerned by reports of the persistence of such exploitation of members of the indigenous peoples living in Paraguay, which is equivalent to inhuman treatment in violation of the Convention (art. 16).

The Committee recommends that the State party take all measures necessary to eliminate all forms of exploitation of members of indigenous peoples for their labour. The State party should also, within a reasonable time frame, fully comply with the judgements of the Inter-American Court of Human Rights that obligate it to adopt measures to protect indigenous peoples.

28. The State party is urged to ensure wide circulation of the report submitted to the Committee and of the Committee’s concluding observations through official websites, the media and non-governmental organizations.

29. The Committee requests the State party to provide information, by 25 November 2012, on the follow-up to the Committee’s recommendations on: (a) access to and strengthening of the legal safeguards for detained persons; (b) the conduct of prompt, impartial and effective investigations; and (c) the prosecution of those suspected of committing acts of torture and other forms of ill-treatment and the punishment of those responsible for such acts, as set forth in paragraphs 11 and 18 of the present document. The Committee also requests information on follow-up to the recommendations presented in paragraph 23 of the present document regarding measures to be taken to prevent, combat and eradicate trafficking in persons.

30. The State party is invited to submit its seventh periodic report at the latest by 25 November 2015. In that regard, the Committee will, since the State party has agreed to submit its reports under the optional reporting procedure, send the State party, in due course, a list of issues prior to the submission of the report.

United Nations Committee Against Torture - Concluding Observations

Paraguay - Concluding Observations of the Committee against Torture - Consideration of Reports submitted by States Parties under Article 19 of the Convention [2011] UNCATCO 18; CAT/C/PRY/CO/4-6 (14 December 2011)