A/hrc/28/68/Add. 1 Advance Version

JUA 28/07/2014 Case No. SRB 1/2014 State Replies: 18/11/2014 and 11/12/2014 Allegations of attacks, threats and acts of intimidation against the non-governmental organization Women in Black and its members.

477. 
     The Special Rapporteur thanks the Government of Serbia for its replies, dated 18.11.2014 and 11.12.2014 to the present communication.
     
478. 
     The Rapporteur takes note of the information provided by the Government that the trial for Radomir Pocuca, former spokesperson of the Anti-Terrorist Unit of the Ministry of Interior, was due to start on September 17, 2014; and that four persons accused of attacking members of Women in Black were apprehended, but subsequently released by a court decision issued on July 11, 2014. Misdemeanor charges were filed against several persons for insulting and threatening the Women in Black, and criminal charges for others for impeding the actions of a law enforcement official. Those proceedings were pending at the time of the government’s reply. The Rapporteur takes note of the Government’s information regarding the will to continue to implement measures that ensure the right to freedom of option and expression, peaceful assembly and association, and the promotion of truth through commemorations of victims of gross human rights violations.
     
479. 
     The Government’s reply does not refer to the fact that the attacks by a right-wing nationalist group against the Women in Black was instigated via Facebook by Mr. Pocuca, who was then a spokesman for the Anti-Terror Unit of the Ministry of Interior and as such a high government official.
     
480. 
     In the absence of sufficient information to the contrary, the Rapporteur concludes that there is substance in the allegations presented in the initial communication, that members of the human rights organization were physically threatened and attacked while exercising their right to freedom of peaceful assembly, and that such an attack was prompted by a Government official. The Rapporteur expects to receive further information from the Government as to the outcome of the ongoing proceedings, appropriate sanctions to perpetrators and instigators, and other remedies afforded to the Women in Black members.
     

481. 
     El Relator Especial agradece al Gobierno de España por su respuesta, de fecha 8 de julio del 2014, acusando recibo de la presente comunicación.
     
482. 
     La comunicación se refería a la reforma de la Ley Orgánica 6/1985 a través de la sanción de la Ley Orgánica 1/2014 del 13 de marzo de 2014.
     
483. 
     España ha sido reconocido por sentar precedente en la comunidad internacional al combatir, juzgar y sancionar crímenes internacionales y violaciones graves de los derechos humanos y del derecho internacional humanitario, incluyendo actos de tortura y desaparición forzada o involuntarias cometidos en otros países bajo la utilización del principio de jurisdicción universal. La nueva ley restringiría la aplicación del principio de jurisdicción universal por los tribunales españoles de investigar y enjuiciar graves crímenes de derecho internacional. El Relator Especial se encuentra particularmente preocupado por la disposición transitoria que establece que la ley tendría efecto retroactivo, aplicándose a todas las investigaciones actualmente en curso. A raíz de ello todos los procesados quedarías sobreseídos. El Relator hace referencia al tercer postulado de los Principios Básicos relativos a la Independencia de la Judicatura que afirma ¨la judicatura será competente en todas las cuestiones de índole judicial y tendrá autoridad exclusiva para decidir si una cuestión que le haya sido sometida está dentro de la competencia que le haya atribuido la ley¨.
     
484. 
     El Relator Especial sostiene que, bajo esta nueva disposición, el gobierno de España incumple con su obligación de actuar de manera diligente respecto de la prevención, investigación o procesamiento de actos de tortura y malos tratos derivando así en la responsabilidad internacional del Estado. El Relator Especial afirma que esta reforma traerá consigo la impunidad por la falta de investigación, procesamiento y sanción a los responsables así como la ausencia del derecho a la verdad de toda la sociedad. El Relator Especial reitera su llamamiento al Gobierno a asegurar la investigación, procesamiento y eventual condena de los responsables de las violaciones del art. 1 de la CAT acontecidas en otros países, por presuntos autores que no son nacionales y contra víctimas también extranjeras.
     

485. 
     El Relator Especial lamenta que, hasta la fecha, el Gobierno de España no haya respondido a la presente comunicación, y por ello, considera que no ha cumplido con su deber de cooperar con el mandato establecido por el Consejo de Derechos Humanos en la resolución 25/13. Asimismo, el Relator Especial considera que el Gobierno no ha cumplido con la obligación emanada de la norma consuetudinaria internacional de investigar, juzgar y sancionar todos los actos de tortura y los tratos crueles, inhumanos o degradantes, como establece, inter alia, la Convención contra la Tortura (CAT).
     
486. 
     Ante la falta de información que indique lo contrario, el Relator concluye que el Gobierno de España, al no garantizar a las mujeres y niñas el más alto nivel posible de salud al imponer ciertos requisitos que funcionarían como obstáculos para la realización del aborto es responsable por sus sufrimientos físicos y mentales en los que esta medida pueda derivar y ha violado sus derechos a no ser torturadas o sometidas a tratos crueles, inhumanos o degradantes como afirman los artículos 1 y 16 del CAT.
     

JAL 07/07/2014 Case No. LKA 7/2014 State Replies: 18/08/2014 and 26/11/2014 Allegations concerning Ms. X, a woman of Tamil origin who has reportedly been beaten up and repeatedly harassed since she reported two military officers raped her.

487. 
     The Special Rapporteur thanks the Government of Sri Lanka for its replies dated 18.08.2014 and 26.11.2014 to the present communication.
     
488. 
     The Rapporteur takes note of the information provided by the Government, confirming that four army officers (three corporals and one private) were indicted for their involvement in the rape in 2010 of Ms. X; that Ms. X’s home was raided in February 2014 by the Mullaithivu Division Police Anti-Vice Unit; and that a warrant for her arrest on charges of selling liquor without a license was outstanding as of November 2014 due to her failure to appear in court.
     
489. 
     The Government’s reply explained that the four army soldiers were indicted by the Attorney General in August 3, 2012, and that the accused were terminated by the army. As of the Government’s reply, the proceedings had not ended and therefore the four accused have not yet been convicted, although the rape occurred in 2010 more than four years earlier. In addition, the Government’s reply insists that the actions of State agents against Ms. X that took place in 2004 (and were the object of the Rapporteur’s latest communication), purporting to charge her with unauthorized sale of liquor, are “unrelated” to her complaint of having been raped in 2010. The Rapporteur finds this answer unsatisfactory, since the first action of this sort, in May 2013, happened two days before the court was to hold the trial of the four soldiers for the rape of Ms. X, and the several subsequent acts seem to constitute harassment as the proceedings in the rape case are continuing. The Government claims to have no record of, and the reply fails to address the subsequent alleged attack on 22 March 2014 and the arrest in May 2013.
     
490. 
     Notwithstanding the information presented by the Government, the Rapporteur concludes that the Government of Sri Lanka, by failing to protect the physical and mental integrity of Ms. X, has violated her right to be free from torture or cruel, inhuman or degrading treatment, as provided for in articles 1 and 16 of the CAT.
     

(a) JUA 14/05/2014 Case No. SDN 2/2014 State Reply: None to date Allegations concerning the case of Ms. Meriam Ibrahim who is facing punishments of public flogging and execution if found guilty on charges of apostasy and adultery in a hearing to be held on 15 May 2014.

491. 
     The Special Rapporteur regrets that the Government of Sudan has not replied to the present communication, thereby failing to cooperate with the mandate issued by the Human Rights Council in its resolution 25/13, and to comply with its obligation, under international customary law, to investigate, prosecute and punish all acts of torture and other cruel, inhuman or degrading treatment or punishment, as codified, inter alia, in the Convention against Torture (CAT).
     
492. 
     The Joint Urgent Action included allegations that Ms. Ibrahim, a woman who was raised as a Christian and is accused of apostasy for marrying a Christian man, was subjected to beatings, aggressive interrogation, denial of food and of access to a lawyer while detained in Omdurman Women’s Prison. At the time of the urgent appeal, she was close to giving birth to a child. It was also alleged that a court had invalidated her Christian matrimony and given her three days to “return to Islam”.
     
493. 
     As observed by the Special Rapporteur in his 2012-report to the General Assembly (A/67/279), there is evidence of an evolving standard within international bodies and a robust State practice to frame the debate about the legality of the death penalty within the context of the fundamental concepts of human dignity and the prohibition of torture and other cruel, inhuman or degrading treatment or punishment. This evolving standard, along with the resulting illegality of the death penalty under such prohibition, is developing into a norm of customary law, if it has not already done so (para. 74). The Special Rapporteur calls upon all States to reconsider whether the use of the death penalty per se respects the inherent dignity of the human person, causes severe mental and physical pain or suffering and constitutes a violation of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment (para. 79).
     
494. 
     In addition, the penalty of flogging is, under any circumstance, a violation of the absolute prohibition on torture.
     
495. 
     In the absence of information to the contrary, the Rapporteur concludes that there is substance in the allegations presented in the initial communication, reiterated above, and thus, that the Government of Sudan, by failing to protect the physical and psychological integrity of Ms. Ibrahim, has violated her right to be free from torture or cruel, inhuman or degrading treatment, as provided by articles 1 and 16 of the CAT.
     
496. 
     It has come to the attention of the Special Rapporteur, that, as of the drafting of this report, the execution of Ms. Ibrahim has not taken place and that she and her family have taken refuge in the United States. The Rapporteur strongly urges the Government of Sudan to refrain from and abolish the practice of flogging and of executions.
     

497. 
     The Special Rapporteur thanks the Government of Sudan for its reply, dated 06.06.2014, to the present communication.
     
498. 
     The Rapporteur welcomes the Government’s assurance to cooperate with the Human Rights Council and its promise to review Mr. Mohamed Abdelrahman’s situation and that of his family. However, the Rapporteur regrets that the Government has not, as of the drafting of this report, submitted any substantive reply.
     
499. 
     The Rapporteur hence finds that the Government’s reply does not sufficiently address the concerns raised in the initial communication. The Government fails to cooperate fully and expeditiously with the mandate issued by the Human Rights Council in its resolution 25/13, as well as to comply with its obligation, under international customary law, to investigate, prosecute and punish all acts of torture and other cruel, inhuman or degrading treatment or punishment, as codified, inter alia, in the Convention against Torture (CAT).
     
500. 
     In the absence of information to the contrary, the Rapporteur concludes that the allegations presented in the initial communication regarding the incommunicado detention of Mr. Abdelrhman, intimidation of his family and attack against one of his relatives have been substantiated. By holding him incommunicado and failing to protect his physical and psychological integrity, or to investigate his whereabouts and detention conditions, and failing likewise protect his family from intimidation and physical attacks, the Government of Sudan has violated their right to be free from torture or cruel, inhuman or degrading treatment, as provided by articles 1 and 16 of the CAT.
     

JUA 19/11/2014 Case No. SWE 1/2014 State Reply: 14/01/2015 Allegations concerning the expulsion of Afghan journalist Mr. Saif Ur Rahman Shirzad from Sweden to Afghanistan, considering the risks he may face, if expelled, in relation to his work as journalist, including risks of death or to be subject to torture or cruel, inhuman, or degrading treatment.

501. 
     The Special Rapporteur thanks the Government of Sweden for its reply, dated 14.01.2015, to the present communication.
     
502. 
     The Rapporteur acknowledges the comprehensive account of the Government in response to the concerns, legal obligations and questions raised in the initial communication.
     
503. 
     He takes note of the information provided by the Government that Mr. Shirzad will be appointed legal counsel for the re-examination of his need for protection in Sweden.
     
504. 
     It has come to the attention of the Special Rapporteur that, as of the drafting of this report, the extradition of Mr. Shirzad to Afghanistan has not taken place. The Rapporteur strongly urges the Government of Sweden to protect the right of Mr. Shirzad to be free from torture or cruel, inhuman or degrading treatment, as provided by articles 1 and 16 of the CAT, and to refrain from extraditing Mr. Shirzad to Afghanistan thereby ensuring compliance with article 3 of the CAT.
     

UA 19/12/2013 Case No. CHE 3/2013 State Reply: 14/01/2014 Allégations de traitements cruels, inhumains ou dégradants envers M. Mohamed Abdelmohsen Ahmed

505. 
     Le Rapporteur spécial remercie le gouvernement de la Confédération suisse pour sa réponse, datée du 14 janvier 2014, à la présente communication.
     
506. 
     Le Rapporteur a pris connaissance de l’explication exhaustive du gouvernement en réponse aux préoccupations, obligations légales et questions soulevées dans la communication initiale. Il prend note de l’information fournie par le gouvernement selon laquelle M. Ahmed n’a pas été maltraité et a accès à son avocat et à une supervision médicale.
     
507. 
     En outre, le gouvernement s’est assuré que M. Ahmed a régulièrement accès à une supervision médicale et a gardé M. Ahmed sous traitement médical suite à sa grève de la faim, entre le 19 décembre 2013 et le 7 janvier 2014.
     
508. 
     Dans sa réponse, le gouvernement suisse déclare que les informations médicales et judiciaires concernant ce cas sont considérées par la loi suisse comme étant couvertes par le droit à la vie privée et ne peuvent être fournies au Rapporteur spécial que si ce dernier fournit la preuve du consentement de M. Ahmed à ce que ces informations soient transmises.
     
509. 
     Le Rapporteur spécial va s'efforcer d’obtenir ce consentement et continuera à être en contact avec le gouvernement suisse avant d’exprimer son opinion sur le fait de de savoir si le droit de M. Ahmed à l’intégrité physique a été violé.
     

510. 
     The Special Rapporteur thanks the Government of Syrian Arab Republic for its reply, dated 03.02.2014, to the present communication.
     
511. 
     The Rapporteur welcomes the steps taken by the Syrian Government to assure minimum detention conditions for prisoners in Aleppo Central Prison. However, he regrets that the government has not been able to assure that all prisoners have access to food, drinking water, medicine and medical care and are free from arbitrary detention.
     
512. 
     The Rapporteur hence finds that the Government’s reply fails sufficiently to address the concerns raised in the initial communication. The Government therefore fails fully and expeditiously to cooperate with the mandate issued by the Human Rights Council in its resolution 25/13, as well as to comply with its obligation, under international customary law, to refrain from inflicting torture or cruel, inhuman or degrading treatment to any person. It fails as well to investigate, prosecute and punish all acts of torture and other cruel, inhuman or degrading treatment or punishment, as codified, inter alia, in the Convention against Torture (CAT).
     
513. 
     In absence of information to the contrary, the Rapporteur concludes that the allegations presented in the initial communication about inhumane conditions in Aleppo Central Prison have been substantiated. The Government of Syria, by failing to prevent arbitrary detention and assure minimum standards of detention of the persons detained in Aleppo Central Prison, has violated their right to be free from torture or cruel, inhuman or degrading treatment, as provided by articles 1 and 16 of the CAT.
     

514. 
     The Special Rapporteur thanks the Government of Syrian Arab Republic for its reply, dated 31.03.2014, to the present communication.
     
515. 
     The Rapporteur takes note of the information provided by the Government that, on the date of the dispatch of the reply, Mr. Raslan was still in detention, and that his case was still under investigation. He regrets that, as of the drafting of this report, the Government has not provided any update on the case. The Rapporteur moreover expresses grave concern at the fact that the Government has failed, in its reply, to provide any information on Mr. Raslan’s condition and whereabouts.
     
516. 
     The Rapporteur hence finds that the Government’s reply does not sufficiently address the concerns raised in the initial communication, and therefore the Government of Syria fails fully and expeditiously to cooperate with the mandate issued by the Human Rights Council in its resolution 25/13. It fails as well as to comply with its obligation, under international customary law, to investigate, prosecute and punish all acts of torture and other cruel, inhuman or degrading treatment or punishment, as codified, inter alia, in the Convention against Torture (CAT).
     
517. 
     In absence of information to the contrary, the Rapporteur concludes that arbitrary detention and conditions in Aleppo Central Prison constitute violations of the absolute prohibition on torture and cruel, inhuman or degrading treatment or punishment and that the Government of Syria has violated the right of Mr. Raslan to be free from torture or cruel, inhuman or degrading treatment, as provided by articles 1 and 16 of the CAT.
     

518. 
     The Special Rapporteur regrets that the Government of Syria has not replied to the present communication, thereby failing to cooperate with the mandate issued by the Human Rights Council in its resolution 25/13, and to comply with its obligation, under international customary law, to investigate, prosecute and punish all acts of torture and other cruel, inhuman or degrading treatment or punishment, as codified, inter alia, in the Convention against Torture (CAT).
     
519. 
     In the absence of information to the contrary, the Rapporteur concludes that there is substance in the allegations presented in the initial communication, reiterated above, and thus, that the Government of Syria, by failing to protect the physical and psychological integrity of civilians, inter alia, by depriving them from access to food, water, and medical attention, has violated the right to be free from torture or cruel, inhuman or degrading treatment, as provided by articles 1 and 16 of the CAT, as well as incurred in grave breaches of the Geneva Conventions and the law and customs of war.
     

520. 
     The Special Rapporteur regrets that the Government of Syria has not replied to the present communication, thereby failing to cooperate with the mandate issued by the Human Rights Council in its resolution 25/13, and to comply with its obligation, under international customary law, to investigate, prosecute and punish all acts of torture and other cruel, inhuman or degrading treatment or punishment, as codified, inter alia, in the Convention against Torture (CAT).
     
521. 
     Mr Al Refai, a military judge, was reportedly arrested after he inquired about the fate of his sister, who was suspected of being a political opponent. After months of incommunicado detention, he was sentenced to ten years in prison, on a similar charge as his sister. When his relatives eventually saw him in detention he had clear signs of torture and mistreatment and of serious threat to his health as a result, and was being denied medical attention. He died while still in custody in May of 2014.
     
522. 
     In the absence of information to the contrary, the Rapporteur concludes that there is substance in the allegations presented in the initial communication, reiterated above, and thus, that the Government of Syria, by failing to protect the physical and psychological integrity of Mr. Refai, and by denying him access to medical treatment, which led to his death in detention, has violated his right to be free from torture or cruel, inhuman or degrading treatment, as provided by articles 1 and 16 of the CAT.
     

523. 
     The Special Rapporteur regrets that the Government of Syria has not replied to the present communication, thereby failing to cooperate with the mandate issued by the Human Rights Council in its resolution 25/13, and to comply with its obligation, under international customary law, to investigate, prosecute and punish all acts of torture and other cruel, inhuman or degrading treatment or punishment, as codified, inter alia, in the Convention against Torture (CAT).
     
524. 
     In the absence of information to the contrary, the Rapporteur concludes that there is substance in the allegations that Mr. Nawfal and Mr. Shaar have been arbitrarily detained and remain in incommunicado detention without access to a lawyer or medical care. The Government of Syria fails to protect their physical and psychological integrity and violates their right to be free from torture or cruel, inhuman or degrading treatment, as provided by articles 1 and 16 of the CAT.