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Relatórios Apresentados
por Portugal aos Órgãos de Controlo da Aplicação
dos Tratados das Nações Unidas em Matéria de
Direitos Humanos
COMMITTEE
AGAINST TORTURE, Nineteenth session
SUMMARY
RECORD OF THE PUBLIC PART* OF THE 308th MEETING, Held at the Palais
des Nations, Geneva, on Friday, 14 November 1997, at 3 p.m.
Chairman: Mr. DIPANDA MOUELLE
CONTENTS
CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE
19 OF THE CONVENTION (continued)
Second periodic report of Portugal
Third periodic report of Switzerland
* The summary record of the closed part of
the meeting appears as document CAT/C/SR.308/Add.1.
This record is subject to correction.
The meeting was called to order at 3 p.m.
CONSIDERATION OF REPORTS SUBMITTED BY STATES
PARTIES UNDER ARTICLE 19 OF THE CONVENTION (agenda item 4) (continued)
Second periodic report of Portugal (CAT/C/25/Add.10):
Conclusions and recommendations of the Committee
1. At the invitation of the Chairman, Mr. Remédio,
Mrs. De Matos, Mrs. Alves Martins and Mr. Gomez Dias (Portugal)
resumed their places at the Committee table.
2. Mr. CAMARA (Country Rapporteur) read out
the conclusions and recommendations of the Committee concerning
the second periodic report of Portugal, in French:
"The Committee considered the second periodic report of Portugal
(CAT/C/25/Add.10) at its ... and ... meetings, held on ... (see
CAT/C/SR.... and ...), and adopted the following conclusions and
recommendations:
"1. Introduction
"The Committee notes with satisfaction
that the report of Portugal conforms to the general guidelines concerning
the presentation and content of periodic reports. It expresses its
great satisfaction at the full, detailed and frank nature of the
report. It listened with the greatest interest to the oral statement
and explanations and clarifications from the delegation of Portugal,
which displayed a real willingness to enter into dialogue and great
professionalism.
"2. Positive aspects
"The Committee expresses its gratification
at the State party's impressive efforts in the legislative and institutional
spheres to bring its legislation into line with the obligations
resulting from its accession to the Convention. The Committee particularly
appreciates the following innovations:
"(a) The adoption of a new Penal Code containing a definition
of torture;
"(b) The opening of certain courts on Saturdays, Sundays
and public holidays so that arrested persons can be brought before
them without delay;
"(c) The adoption of the Physicians' Code of Ethics;
"(d) The establishment of criminal sanctions for officials
who fail to report acts of torture within three days of learning
of them;
"(e) The adoption of the rule aut dedere, aut judicare;
"(f) The adoption and application of an extensive programme
for education in the sphere of human rights in general and in
that of the prevention of torture in particular;
"(g) The establishment of the office of Provedor de Justiça
and of the Inspecção-Geral da Administração
Interna and, in particular, the powers recognized to those institutions;
"(h) The recognition to victims of torture and similar acts
of the right to compensation, as well as the general system for
the compensation of victims of offences;
"(i) The provisions of article 32, paragraph 6, of the Constitution
invalidating evidence obtained by torture;
"(j) The revision of the Constitution, especially the ending
of the status of military courts as special courts.
"3. Factors and difficulties impeding
the application of the provisions of the Convention
"The Committee observes that there are
no factors or difficulties likely to impede the application of the
provisions of the Convention in Portugal.
"4. Subjects of concern
"The Committee is seriously concerned by
the recent cases of ill-treatment, torture and, in some instances,
suspicious death ascribed to members of the forces of law and order,
especially the police, as well as the apparent lack of any appropriate
reaction by the competent authorities.
"The rules on extradition and deportation
are not conducive to observance by the State party of the Convention,
especially article 3 thereof.
"5. Recommendations
"The State party should revise its practice
regarding the protection of human rights so as to make the rights
and freedoms recognized in Portuguese law more effective, and to
narrow or even eliminate the gap between the law and its implementation.
"To that end it should devote the greatest
possible care to the handling of files concerning accusations of
violence made against public officials, with a view to initiating
investigations and, in proven cases, applying appropriate penalties.
"Even though the principle of due process
applies in Portugal, the legislation should be clarified in order
to remove any doubts concerning the obligation on the part of the
competent authorities to initiate investigations of their own accord
and systematically in all cases where there are reasonable grounds
for believing that an act of torture has been committed on any territory
within its jurisdiction."
3. Mr. SØRENSEN said that he wished to
amend one of his earlier statements. He had urged Portugal to make
a further contribution to the Voluntary Fund for Victims of Torture,
unaware that the list of contributions on which he had based his
information stopped at September 1997. Since that date the Government
of Portugal had contributed a further US$ 10,000 to the fund, which
he formally acknowledged.
4. Mr. ROMEDIO (Portugal) assured the Committee
that he would communicate all its comments to the competent authorities
in his country.
5. The CHAIRMAN thanked the members of the delegation
of Portugal for their frank cooperation.
6. The delegation of Portugal withdrew.
The public part of the meeting was suspended
at 3.15 p.m. and resumed at 3.30 p.m.
Third periodic report of Switzerland (CAT/C/34/Add.6)
(continued)
7. At the invitation of the Chairman, Mr. Müller,
Mr. Schürmann, Mr. Voeffray, Mr. Walpen, Mrs. von Barnetow
Meyer and Mr. Arnold (Switzerland) resumed their places at the Committee
table.
8. The CHAIRMAN invited the delegation of Switzerland
to reply to the Committee members' questions.
9. Mr. MÜLLER (Switzerland) reiterated
that torture was not practised in Switzerland and that the allegations
that had been made referred only to minor infractions. In reply
to the questions put concerning specific measures taken to punish
torture, he recalled that, as indicated in the report, the Swiss
Penal Code contained a special section covering everything that
might constitute an act of torture. Furthermore, as indicated in
the initial report, the Federal Tribunal had clearly stated that
torture would never be acceptable in Switzerland and that the prohibition
on torture was an integral element of the country's legal system.
While the idea that special legislation should be passed making
the public aware that the State would never condone torture was
quite acceptable, technically speaking every possible aspect of
torture was already covered by the Penal Code.
10. A member had said that one of the characteristics
of torture was that it was committed by officials or representatives
of the State and had asked whether the Swiss legal system took account
of that fact. It could be replied that if an official or a police
officer committed an act of torture he was guilty not only of assault
and battery or murder, for example, but also of abuse of authority
in addition to the offence committed. The Penal Code stated in a
special provision that, in cases of accumulation, the judge should
sentence the offender for the most serious offence and increase
the length of the sentence according to the circumstances (with
the provisio that the increase must not exceed half the maximum
sentence for the offence in question). Moreover, acts of complicity
and attempts to commit torture were also covered by the general
provisions of the Penal Code. With regard to possible action against
police officers and officials, broadly speaking it was of two kinds,
judicial and administrative. An administrative inquiry was usually
directed by an official, but might be entrusted to an independent
person. At the same time, judicial proceedings were instituted,
giving rise to a court ruling on the punishable nature of the alleged
act. That might be followed by a Federal Tribunal judgement either
on judicial review or on public law appeal. Once those remedies
had been exhausted, there remained the possibility of appeal to
the bodies established by the European Convention on Human Rights.
11. Notification of relatives was almost always
guaranteed in practice. The most recent legislation in the cantons
had made express provision for the right to notify relatives. In
the canton of Bern, counsel did not have the right to attend the
initial hearings, but must be notified immediately of a client's
arrest.
12. With regard to medical attention, while
the Federal Tribunal did not guarantee an absolutely free choice
of doctor, everyone had the right to medical treatment if necessary
and the Tribunal had also ruled that, in certain circumstances,
it might be admissible to authorize a detainee to consult the doctor
of his or her choice.
13. In reply to the Chairman's questions, he
said that "assault" ("voies de fait") was defined
in the Penal Code as physical force, even causing no pain, in excess
of what was considered tolerable according to normal practice and
social usage, but resulting neither in physical injury nor in damage
to health. It was immaterial in what way the victim felt assaulted.
With regard to the notion of "illegal constraint", he
said that a constraint was illegal if either the means used were
illegal, or the purpose was illegal, or if the purpose and the means
as such were legal but the combination of the two might be considered
illegal. The question was covered by article 180 of the Penal Code.
14. Mr. SCHÜRMANN (Switzerland), referring
to the statement in paragraph 13 of the report to the effect that
one petition had been settled amicably without being brought before
the Court, said that that was not quite correct, since the matter
had in fact been raised before the European Court of Human Rights.
Since the parties had come to an amicable settlement, however (on
the plaintiff's initiative), the Court had not had to give a ruling.
The case had concerned the arrest of a drug trafficker in which
the European Commission of Human Rights had established that article
3 of the European Convention on Human Rights had been violated.
Under the terms of the amicable settlement, the Swiss Government
had paid compensation to the plaintiff and the Court had been able
to strike the case off its list. As to the case that had been pending
before the Commission, proceedings had now been concluded. The case
had concerned a Palestinian who had been arrested by the Geneva
police and who had alleged that he had been ill-treated. In the
view of the Commission, the complainant's allegations had lacked
credibility and an in-depth internal inquiry had not dispelled its
doubts. There was, therefore, no proof of treatment contrary to
article 3 of the European Convention on Human Rights. Since then,
in two other matters of a similar nature, the Commission had declared
the plaintiffs' allegations inadmissible.
15. Mr. MÜLLER (Switzerland) said that
the Federal Commission on Appeals in Asylum Matters was currently
composed of five chambers and 22 judges elected by the Federal Council
from among independent lawyers or jurists with a thorough knowledge
of federal legislation on asylum. Racial discrimination was punishable
under article 261 bis of the Penal Code by a maximum of three years'
imprisonment or a fine. There were regrettably no statistics at
the federal level on penal measures taken against police officers
found guilty of ill-treating detainees. Inquiries had been made,
however, into the situation in some of the cantons mentioned in
paragraph 79 of the report. In Geneva canton, for example, five
cases had ended in a conviction and a fine together with disciplinary
action (consisting in four cases of a warning and in one case of
a weeks' suspension without pay). In Fribourg canton, two cases
had been dismissed as the allegations had been judged groundless.
16. Referring to Mrs. Iliopoulos-Strangas's
observation that the legislation on asylum did not explicitly mention
torture among the criteria for granting asylum, he acknowledged
that torture was not mentioned in the Asylum Act, but neither was
it mentioned in the 1951 Convention relating to the Status of Refugees.
In Switzerland the notion of persecution on such grounds as race,
religion, nationality or political opinion had in practice and in
law, always been deemed to include the idea of torture. Torture
was considered a form of persecution and therefore constituted grounds
for granting asylum. Any asylum application alleging the risk of
torture was given special consideration by the Swiss authorities.
On the strength of its long legal tradition in the area, Switzerland
therefore believed itself to comply with international legislation
on torture and other cruel, inhuman or degrading treatment or punishment.
17. Noting that one member of the Committee
had expressed concern over injections administered to detainees,
he emphasized that first of all, there were no military or police
physicians in Switzerland: all doctors called on to treat detainees
were independent; and the Code of Criminal Procedure ruled out any
possibility of injections forming part of the police arsenal. If
an injection was administered, it was for purely medical reasons
and a doctor might very well be faced with a situation where an
injection seemed indicated or even necessary.
18. It was true that the wording of article
3 of the European Convention on Human Rights and that of article
3 of the Convention on torture were not identical, but the case
law of the Strasbourg bodies regarding article 3 of the European
Convention had de facto instituted the principle of no forcible
return (non-refoulement) and there was no basic difference between
the two instruments. There had in fact been many cases where the
European Commission of Human Rights had found that article 3 of
the European Convention had been violated because there had been
a risk of torture.
19. The question had been raised of why allegations
of ill-treatment were not always investigated automatically. Torture
as defined by the Convention could take the form of various offences
that were covered by the Swiss Penal Code. Most degrading and inhuman
treatment consisted of acts that were automatically prosecuted by
the public prosecutor's office; it was only in cases of assault,
which was a minor offence, that no action was taken unless a complaint
was made.
20. A question had been asked concerning how
Switzerland disseminated Human Rights Committee recommendations
to the competent authorities. The procedure, by now well established,
was as follows: a Swiss delegation that had met with a human rights
treaty body presented a detailed report to the Federal Council,
which in turn informed the cantonal governments of the Committee's
concerns and recommendations and asked them to apprise the responsible
departments. The Federal Council might also make inquiries about
what action had been taken on the treaty body's recommendations.
With regard to the dissemination of Amnesty International reports,
which did not have official standing, the Federal Council usually
took note of them and, if they were found to contain allegations
requiring some intervention or reporting on the Council's part,
it obtained information from the bodies concerned within the cantons.
21. Regarding the duration of police custody,
the maximum of 96 hours permitted by the European Commission of
Human Rights no longer applied in Switzerland: the Code of Criminal
Procedure now explicitly provided that police custody was normally
for 24 hours. As to incommunication, if that term meant that nobody
knew where the detainee was, it was a practice unknown in Switzerland,
though if there was a risk of collusion the court could order the
application of a stricter regime which, while not depriving the
detainee of all rights, would limit his or her contact with the
outside world for a certain period.
22. Five persons in Switzerland at the time
had been designated in applications for arrest submitted by the
international tribunals appointed to try persons for serious violations
of humanitarian law committed in former Yugoslavia and in Rwanda.
In the case of one Rwandan an extradition order had been issued:
the military appeals court having decided in favour of extradition
and the decision having been confirmed by the Federal Tribunal,
the person had been transferred in order to be brought before the
Arusha tribunal. Extradition proceedings instituted against another
Rwandan were in progress. Two nationals of the former Yugoslavia
had been released for lack of sufficient evidence and a third for
health reasons.
23. Not only did Switzerland contribute to the
United Nations Voluntary Fund for Victims of Torture, but it also
subsidized several non-governmental organizations working in the
same field. The Swiss delegation would of course communicate to
the competent authorities a recommendation that a further contribution
should be made. The question of compensating victims of acts of
torture did not arise in Switzerland, where such practices did not
prevail. The possibility of compensation certainly existed for cases
of ill-treatment, though he could not give any specific examples.
The legislation on aid to victims provided for compensation of up
to 1,100 Swiss francs for ill-treatment, and an unlimited amount
for mental suffering. In several rulings on the implementation of
the legislation on aid to victims, the Federal Tribunal had found
in favour of the injured parties, judging it, for example, contrary
to the aims of the legislation to suspend compensation proceedings
and require victims first to bring a civil action themselves.
24. A question had been asked about persons
from Kosovo who had reportedly been ill-treated in Ticino canton.
He presumed it referred to the two people who had lodged a complaint
for ill-treatment and in whose case the Federal Tribunal had ruled
in 1997 that there was insufficient evidence to establish that police
officers were guilty of inhuman or degrading treatment.
25. The statistics on ill-treatment on file
at the Federal Statistical Office covered all ill-treatment, whether
by private individuals or by government representatives, so it was
not possible to provide the Committee with more specific information
on the matter. However, throughout Switzerland the rules of criminal
procedure expressly prohibited utilization of evidence obtained
by means of torture or ill-treatment.
26. Mr. WALPEN (Switzerland) referred to an
observation made by a member of the Committee at the preceding meeting
to the effect that, since Switzerland was made up of 26 cantons,
the basic problem was to get accepted at the cantonal level the
major decisions taken at the federal level. As he himself worked
in the field, being the Chief of Police of Geneva, his participation
in the Committee's deliberations was evidence that the system worked
satisfactorily.
27. With regard to training, Mr. Sørenson's
description of the Danish system at the preceding meeting had been
very instructive and the Swiss authorities would certainly draw
inspiration from it. Training of rank-and-file police in human rights
and in measures to combat torture was a relatively new development.
Until recently, the police had been given very detailed instruction
in law and those courses had been thought to deal satisfactorily
with international humanitarian law, human rights and the problem
of torture. But since Switzerland had signed a number of international
conventions, the issue had come into sharper focus and the police
authorities had decided to devote a separate training component
to such questions. The Swiss Chiefs of Police Conference had decided
to introduce such training for all Swiss police officers. The Swiss
Police Institute now held a great many courses at the federal level
on, for example, relations between the police and minorities or
foreigners, reception of victims, human rights and humanitarian
law. Apart from that, each canton organized ad hoc courses in particular
areas: he himself, for example, instructed Geneva police officers
in police ethics, humanitarian law and the international human rights
protection mechanisms. Geneva also regularly called on external
collaborators, such as specialists from the Office of the High Commissioner
for Refugees (UNHCR), to speak on specific problems. Moreover, medical
studies in Geneva included a compulsory course in humanitarian law
culminating in an examination. There were no forensic physicians
attached to the police force; all of them were members of the University
Institute of Forensic Medicine, a completely independent body. The
Institute organized training courses for professionals who had to
deal with violence, on subjects such as violence towards women or
children or violence by agents of the State. Admittedly perfection
was never achieved in the area of the prevention of torture; there
would never be a faultless match between legal mechanisms and practice
and even though Switzerland possessed a wide range of mechanisms
abuses could not be completely ruled out. Indeed, the allegations
made by non-governmental organizations and private individuals,
for example, made one wonder at times whether the legislation was
adequate. One case in particular was currently on everybody's mind,
although, as it was sub judice, he could say no more about it than
that, in his personal opinion, it had made all police officers deeply
aware of the issue, and had highlighted the gap that could exist
between legal norms and hard reality and the difficulty facing an
ordinary police officer in a complex situation involving someone
from another country with a different life experience. In such situations
the system could break down, and it was for precisely that reason
that it had been made obligatory for every police report to include
a section entitled "Use of force": any police officer
who was obliged to restrain someone - with handcuffs for example
- must so indicate in that section, stating why and to what degree
force had been used. The report was then submitted to an external,
impartial person from the justice administration, who examined all
such reports and, in case of doubt, could request additional information.
All reports indicating the existence of a complaint or grievance
were sent to the Attorney-General, who in Geneva was elected by
the people and was not accountable in any way to the executive branch
or the legislature. The Attorney-General was the head of the magistrature
and the authority responsible for supervising the police. Any individual
could, under a special procedure, lodge a complaint and the Attorney-General
would give a ruling, thereby providing a channel that straddled
the judiciary and the administration. A judicial channel also existed,
for the Attorney-General of Geneva had the power to discontinue
proceedings, a judicial decision explicitly provided for in criminal
procedure, and taken when the situation was not sufficiently clarified
for the case to be brought to trial: it meant that the case was
left in abeyance and accordingly, if new facts came to light, would
be reopened by the judge. The commissioner for ethics referred to
previously already existed de facto if not de jure: a far-reaching
reform of the Geneva police force was under way and the new regulations
would explicitly establish such an institution, which would greatly
benefit not only the victims of ill-treatment but also any police
officers who might be wrongly accused.
28. In Geneva, penalties could be judicial in
nature, since if a complaint was made the examining magistrate began
the entire investigation again. A statement made to the police had
no procedural validity; the examining magistrate started the whole
proceedings again by first asking the person concerned if he or
she would confirm the confession made to the police. If the confession
was retracted, it was not taken into account. Apart from criminal
penalties, there was also a whole range of administrative sanctions.
By way of illustration, he cited the case of a policeman who had
hit someone without justification and been sentenced to a week's
suspension without pay, a punishment with serious financial consequences.
29. Mr. PIKIS asked whether persons accused
of an offence had the right to remain silent and whether they were
informed of that right, which, under the European Convention on
Human Rights, was inseparable from the presumption of innocence.
He also wondered whether the fact that most of those who complained
of ill-treatment at the time of their arrest or while in detention
were foreigners was a cause for concern to the Swiss authorities,
and whether the latter considered it merely a coincidence or a phenomenon
whose roots were deeper than that.
30. Mr. SØRENSEN asked whether the staff
of the various bodies of the Federal Bureau for Refugees received
any training in the international rules prohibiting torture.
31. Mr. WALPEN (Switzerland) acknowledged that
many of the complaints of ill-treatment were indeed made by foreigners.
The cantons commonly named in the various reports on the subject
were Geneva, Zurich and Ticino, i.e., border cantons with a very
high concentration of foreigners. More than 39 per cent of the population
of Geneva, for example, consisted of foreigners. Of the persons
arrested, around 60 per cent were foreigners, and many of those
were transients. Statistically, therefore, it was understandable
that so many complaints came from foreigners. Notwithstanding, some
Swiss citizens also complained about police conduct.
32. Mr. MÜLLER (Switzerland) said that
the right to remain silent was guaranteed by the legislation. In
his oral presentation, he had referred to the Bern Code of Criminal
Procedure, which did not differ greatly from the corresponding Geneva
Code, and which explicitly recognized detainees' right not to make
any statement. But even though the right of those arrested to remain
silent was not always respected in practice, things were moving
in the right direction: the Commission dealing with the harmonization
of criminal procedure in Switzerland would soon be presenting the
Government with recommendations aimed at ensuring that the right
to remain silent was respected.
33. With regard to instruction on international
regulations against torture for the staff of bodies dealing with
refugees, he said that the Federal Bureau for Refugees organized
regular courses to teach the principles contained in the international
human rights instruments, including the Convention against torture.
The courses usually lasted between half a day and one and a half
days, depending on the category of staff.
34. Mrs. ILIOPOULOS-STRANGAS noted that the
delegation of Switzerland had said that the State party was aware
of a number of gaps in its current legislation and that there were
plans to introduce amendments in order to take better account of
the cases of persons who, while not meeting the requisite conditions
for the granting of refugee status, were at risk of torture if they
were sent back to their countries. She asked whether efforts were
being made to find legal or political formulas allowing such persons
to enjoy the protection provided by article 3.
35. Mr. VOEFFRAY (Switzerland) said that in
considering asylum applications, the authorities checked whether
applicants had been personally subjected to threats of torture in
their countries. If there was no indication that that was so, the
case was reviewed later under the deportation procedure, which was
different from the procedure followed in dealing with an application
for asylum. If it was found that flagrant and systematic human rights
violations took place in countries to which applicants were to be
returned, they would not be deported even if they had been unable
to prove that they were personally in danger.
36. The CHAIRMAN thanked the delegation of Switzerland
for the extremely clear answers it had given to the various questions
asked and invited it to join the Committee once more when the public
part of the meeting resumed, in order to hear the conclusions and
recommendations the Committee had adopted for the attention of the
Swiss authorities.
37. The delegation of Switzerland withdrew.
The public part of the meeting was suspended
at 4.45 p.m.
and resumed at 5.40 p.m.
38. At the invitation of the Chairman, the members of the delegation
of Switzerland resumed their places at the Committee table.
Conclusions and recommendations of the Committee
39. The CHAIRMAN read out the following conclusions
and recommendations of the Committee, in French:
"The Committee considered the third periodic
report of Switzerland (CAT/C/34/Add.6) at its 307th and 308th meetings,
held on 14 November 1997 (CAT/C/SR.307, SR.308 and SR.308/Add.1),
and has adopted the following conclusions and recommendations.
"A. Introduction
"The Committee against Torture expresses
appreciation to the State party for its third periodic report, which
was submitted in accordance with the time limit, and was in keeping
with the Committee's guidelines concerning periodic reports.
"The Committee listened with interest and
attention to the oral presentation and clarifications supplied by
the delegation of Switzerland.
"The Committee thanks the delegation for
having provided clear and detailed replies to the oral questions
it posed, which made it possible to conduct a fruitful and constructive
dialogue between the Committee and the delegation.
"B. Positive aspects
"The Committee records with satisfaction
and particular appreciation that no governmental or non-governmental
body has confirmed the existence of cases of torture in the terms
of article 1 of the Convention.
"The Committee notes with satisfaction
that a provision has entered into force prohibiting racial discrimination.
"The Committee welcomes the fact that on
21 December 1994, the Swiss Parliament adopted a provision concerning
cooperation with international tribunals under which Switzerland
undertook to respond to requests for the arrest and transfer of
persons accused of serious violations of humanitarian law in the
former Yugoslavia and in Rwanda.
"The Committee welcomes the revision of
a number of provisions of the codes of criminal procedure in various
cantons, designed to strengthen the rights of the defence and the
rights of persons in pre-trial detention.
"In the same context, the Committee welcomes
the fact that since 15 October 1992 a 24-hour medical service attached
to the police and run by the Geneva University Institute of Forensic
Medicine has been in operation.
"Lastly, the Committee welcomes the financial
support that Switzerland has been providing for a number of years
to the United Nations Voluntary Fund for Victims of Torture and
to non-governmental organizations operating in various countries
throughout the world.
"C. Factors and difficulties impeding
the application
of the provisions of the Convention
"The lack of a specific appropriate definition
of torture makes the full application of the Convention difficult.
"D. Subjects of concern
"The Committee is concerned at frequent
allegations of ill-treatment in the course of arrests or in police
custody, particularly in respect of foreign nationals. Independent
machinery for recording and following up complaints of ill-treatment
does not seem to exist in all the cantons. The Committee is also
concerned at the apparent lack of an appropriate reaction on the
part of the competent authorities.
"The Committee regrets the non-existence
in some cantons of legal guarantees, such as the possibility for
a detainee to contact a family member or lawyer immediately after
his or her arrest and to be examined by an independent doctor at
the commencement of police custody or when he or she is brought
before an examining magistrate.
"The Committee is concerned at allegations
made by non-governmental organizations that, during the expulsion
of certain aliens, doctors have engaged in medical treatment of
such persons without their consent.
"The Committee is concerned at the non-existence
of a suspect's right to remain silent.
"E. Recommendations
"The Committee recommends that machinery
should be set up in all cantons to receive complaints against certain
members of the police regarding ill-treatment during arrest, questioning
and police custody.
"The Committee recommends harmonization
of the various cantonal laws governing criminal procedure, especially
as regards fundamental guarantees during police custody or when
persons are held incommunicado.
"The Committee emphasizes the need to allow
suspects to contact a lawyer or family member or friend and to be
examined by an independent doctor immediately upon their arrest,
or after each session of questioning, and before they are brought
before an examining magistrate or released.
"The Committee recommends that an explicit
definition of torture should appear in the Criminal Code.
"The Committee also recommends to the State
party that it should devote the greatest possible care to the handling
of files concerning accusations of violence made against public
officials with a view to the opening of investigations and, in proven
cases, the application of appropriate penalties.
"The Committee recommends the adoption
of legislative measures granting suspects the right to remain silent.
"Lastly, the Committee recommends the authorities
to investigate the allegations of medical treatment being carried
out on persons who are being expelled, without their consent."
40. Mr. MÜLLER (Switzerland) thanked the
Committee for its comments and recommendations and undertook to
communicate them to the federal and cantonal authorities.
41. The CHAIRMAN thanked the Swiss delegation
for its clear and detailed responses to the Committee's questions
and for the spirit in which it had been possible to conduct the
dialogue.
42. The delegation of Switzerland withdrew.
The meeting rose at 5.50 p.m.
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