Where global solutions are shaped for you | News & Media | COMMITTEE ON ENFORCED DISAPPEARANCES EXAMINES SLOVAKIA’S REPORT, URGES GREATER RESPECT FOR FUNDAMENTAL SAFEGUARDS IN PRACTICE

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COMMITTEE ON ENFORCED DISAPPEARANCES EXAMINES SLOVAKIA’S REPORT, URGES GREATER RESPECT FOR FUNDAMENTAL SAFEGUARDS IN PRACTICE

3 October 2019

The Committee on Enforced Disappearances today concluded its consideration of the initial report of Slovakia on measures taken to implement the provisions of the International Convention for the Protection of all Persons from Enforced Disappearance.

Juraj Podhorský, Permanent Representative of Slovakia to the United Nations Office at Geneva, introducing the report, said that, based on the Constitution, human rights instruments took precedence over the national laws of Slovakia. In that vein, the International Convention for the Protection of all Persons from Enforced Disappearance had become an inherent part of the Slovak legislation and was directly applicable.

The crime of enforced disappearance had been introduced by the Criminal Code in 2011. Committing this crime could not be justified under any circumstances, including if the act was carried out under orders from a superior or during a state of war or a state of emergency, stressed Mr. Podhorský.

Under the Criminal Code, a superior officer was criminally liable when he or she had knowledge that a subordinate had committed or intended to commit the crime of enforced disappearance. The Police Force Act and the Act on Prosecution provided for the suspension from duties of law enforcement officers suspected of committing a criminal offence. Courts reviewed each case of extradition to ensure that the conditions were met, while the Ministry of Foreign and European Affairs cooperated in the procedure and provided insight and information on the situation in the country of extradition.

At the beginning of the dialogue, Koji Teraya, Committee Co-Rapporteur, commended the Slovak Criminal Code which defined enforced disappearance as an autonomous crime and as such, could serve as a model for other States. Other Experts welcomed the adoption of the Victims Act and the very broad definition of a victim that it contained, and also welcomed the budgetary increases for the National Centre for Human Rights, Slovakia’s national human rights institution.

Echoing the United Nations and European Union anti-torture bodies, Committee Experts expressed concerns about the failure to respect fundamental safeguards in practice. Those included the placement of a person in detention without recording the data in the custodial registry or the denial of the right of a detainee to contact a legal representative. Furthermore, police officers were allowed not to inform the family about the whereabouts of a detainee “when such information might frustrate clarification and investigation in the case”.

The Committee was also concerned about the lack of compliance with the principle of non-refoulement in practice, especially in the context of extradition or expulsion of individuals considered a threat to the security of the State, or those who could be at risk of enforced disappearance in the requesting State. In addition, Slovakia had accepted in the past diplomatic assurances from States where an extradited person could be at risk of torture.

In his concluding remarks, Mr. Teraya commended Slovakia’s legal framework and stressed that the next important step must be the implementation of the Convention and the laws.

Mr. Podhorský concluded by stressing Slovakia’s conviction that the fruitful and constructive discussion would bear fruit in terms of adopting additional measures and enhancing the further implementation of the Convention in the country.

The delegation of Slovakia consisted of representatives of the Ministry of Justice, Ministry of Interior, and the Permanent Mission of Slovakia to the United Nations Office at Geneva.

The Committee will issue its concluding observations on the report of Slovakia at the end of its seventeenth session on 11 October. Those, and other documents relating to the Committee’s work, including reports submitted by States parties, can be found on the session’s webpage.

The webcast of the Committee’s public meetings can be accessed at http://webtv.un.org/.

The Committee will next meet in public at 3 p.m. today 3 October to conclude its consideration of the initial report of Bolivia (CED/C/BOL/1).

Report

The Committee has before it the initial report of Slovakia (CED/C/SVK/1) and its replies to the list of issues (CED/C/SVK/Q/1/Add.1).

Presentation of the Report

JURAJ PODHORSKÝ, Permanent Representative of Slovakia to the United Nations Office at Geneva, introducing the report, explained that Slovakia had a monist approach to international law and that all ratified international instruments became an inherent part of the Slovak legal system. Based on the Constitution, human rights instruments took precedence over the laws of Slovakia. The International Convention for the Protection of all Persons from Enforced Disappearance had been ratified in 2014 and entered into force on 14 January 2015. It had thus become an inherent part of the Slovak legislation whereby it was directly applicable.

The crime of enforced disappearance had been introduced by the Criminal Code in 2011. Committing this crime could not be justified under any circumstances, including if the act was carried out under orders from a superior or during a state of war or a state of emergency, stressed Mr. Podhorský.

Turning to the definition of the crime of enforced disappearance, Mr. Podhorský explained that, under the Slovak legal tradition, an act was characterised as a criminal offence if it met all the constitutive elements, including consequence and causal nexus. Thus, depriving another person from a possibility of enjoying legal protection was interpreted as a consequence of the perpetrator’s conduct.

Under the Criminal Code, a superior officer was criminally liable when he or she had knowledge that a subordinate had committed or intended to commit the crime of enforced disappearance, failed to take all necessary measures to prevent or repress the crime, or failed to inform the competent authorities. Furthermore, the independence and promptness of investigation of any criminal offence was guaranteed.

The Police Force Act and the Act on Prosecution provided for the suspension from duties of law enforcement officers suspected of committing a criminal offence. The law imposed an obligation on each and every officer in law enforcement bodies to refuse to carry out an order if a criminal offence or other offence would be committed.

Under constitutional guarantees, no one could be subjected to a prison sentence of restriction of personal liberty without a valid court order. Courts reviewed each case of extradition to ensure that the conditions were met, while the Ministry of Foreign and European Affairs cooperated in the procedure and provided insight and information on the situation in the country of extradition.

A new law on victims had been adopted which defined a victim, particularly vulnerable victims, and victims of domestic violence. It stipulated the right of each victim to obtain professional help, including psychological and legal, in line with his or her needs and current situation. The Code of Criminal Procedure further strengthened the rights of victims and provided for a duty of the police, prosecutors and judges to inform the victim about the means of assistance that could be provided, their rights in criminal procedures and how to claim compensation. Children victims were additionally protected from secondary victimization.

A specialized Office of Defender of Children’s Rights had been set up in 2015 as an independent monitoring body with competence for this vulnerable group. An extra layer of protection was given to cross-border cases and cross-border adoption by the Centre for International Legal Protection of Children and Youth.

Mr. Podhorský also said that the legislative guarantees provided for a prompt and impartial investigation of any crime of enforced disappearance that might occur, while the legislation on the detention and restriction of personal liberty provided guarantees that no one should be subjected to unlawful detention and denial of rights during detention.

Questions by the Committee Experts

KOJI TERAYA, Committee Co-Rapporteur for Slovakia, took note of the lack of responses from civil society organizations on the drafting of the report and asked the delegation whether it was due to the lack of awareness about the Convention, the short period of time allocated to the reception of responses, or insufficient outreach to civil society organizations.

Welcoming the budgetary increases for the National Centre for Human Rights, Slovakia’s national human rights institution, Mr. Teraya noted that it was not entirely clear whether the budgetary and staffing increase had indeed materialized.

The Co-Rapporteur asked the delegation to explain whether the list of non-derogable rights, specified in paragraph 6 of the replies to the list of issues, was a limited enumeration. He asked the delegation to confirm that enforced disappearance was not permitted in times of war or other similar situations and that there was no possibility that enforced disappearance could happen based on limitation clauses, which were often a part of the legislation in some States that aimed to limit human rights in a general manner.

It was very reassuring that the Slovak Criminal Code defined the crime of enforced disappearance as an autonomous crime. In this respect, this law was a model provision for other States, Mr. Teraya said. He welcomed the new translation of the definition of the crime in the Criminal Code, which had clarified three relevant points, “acquiescence”, “the fate or whereabouts” and the legal character of “place such person outside the protection of the law.” Was the original text in Slovak so vague as to permit several interpretations, as had been the case with the older translation of the provision?

As far as the order of the superior was concerned, did the legislation make it clear whether a soldier was under the obligation to fulfil the order even if it involved the commission of the crime of enforced disappearance?

MILICA KOLAKOVIÆ-BOJOVIÆ, Committee Co-Rapporteur for Slovakia, asked the delegation to explain how legal provisions ensured prompt and impartial investigation and procedural guarantees, particularly in light of concerns raised by several other human rights committees about the implementation of legal and procedural guarantees in practice.

One such concern was related to the practice of the placement of a person in detention without recording the data in the custodial registry, while another addressed the denial of the right of a detainee to contact a legal representative.

Did the legislation provide for an automatic suspension from duty of any State official suspected of involvement in the commission of a crime of enforced disappearance?

The investigation of the crime of enforced disappearance was not in the competence of the military police, the Co-Rapporteur noted, and asked about the competence of military courts in prosecuting this crime.

Slovakia could refuse mutual legal assistance and cooperation if such a request would violate the Constitution or any other legal provision, or any important protected interests of the State. What were those protected interests?
Replies by the Delegation

Responding to questions raised on the report drafting process and the consequent public consultation, the delegation said that it was unusual not to receive any comments from civil society organizations on the State’s reports under any of the human rights conventions. The State’s report under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment had received 29 comments, while its report to the Committee on the Elimination of Discrimination against Women had garnered over 100 contributions and comments.

The International Convention for the Protection of All Persons from Enforced Disappearance probably did not capture the public attention in Slovakia as it was narrowly focused on a specific issue or specific actor. Thus, there were no specialized non-governmental organizations that worked on this issue.

The budget for the Slovak National Centre for Human Rights had indeed been increased by 40 per cent and the additional staff had been hired even if the reform package had not been approved. It was unusual that a reform was passed in the Cabinet but not in Parliament, the delegate said. Because members of Parliament had made a number of comments on the proposal which were actually contrary to the Paris Principles, the Government decided not to adopt the reform package and would offer it for adoption under the new government.

It was hard to translate Slovak legal terminology in English, another delegate explained. Because different agencies used different translations of the section of the Criminal Code that defined the crime of enforced disappearance, the Government had decided to offer a new translation validated by lawyers and jurists. In Slovak, there was no vagueness or ambiguity in the definition of the crime of enforced disappearance, she reiterated.

Under the monist system, all ratified international instruments became a part of the domestic legal order and were directly applicable in court. All courts had to follow the conventions which were of a higher legal order than national law and even the Constitution must be interpreted in line with human rights conventions that Slovakia had ratified. Those guarantees ensured a high degree of compliance with international human rights instruments.

Soldiers had a legal duty and obligation to refuse an order to commit a crime, even if the order was confirmed in writing. The order by a superior did not have a higher power than the law. There were no military courts in Slovakia and all crimes committed by members of the military were tried in criminal courts.

The placement of a person in detention was regulated by an order of the Head of the Police Force, which was informed by Slovakia’s obligations under the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. Any presence of a person in a place of detention or any other place of deprivation of liberty had to be recorded in the registry.

The legislation did not give discretionary power to a superior officer to decide whether a subordinate officer would be suspended; the decision was not automatic, rather, there was a legal procedure to follow before the superior made a decision to suspend the subordinate officer.

In follow-up questions, an Expert noted that the crime of enforced disappearance was not included in the list of infractions that the Criminal Code deemed necessary to trigger universal jurisdiction. The Code, however, allowed a judge to establish universal jurisdiction for enforced disappearance committed abroad if the criteria of double jeopardy was met.

The delegation explained that universal jurisdiction could be triggered only if another country had a crime of enforced disappearance on the books and prescribed adequate punishment.

Questions by Committee Experts

KOJI TERAYA, Committee Co-Rapporteur for Slovakia, remarked that the principle of non-refoulement seemingly did not apply to the extradition of persons who were considered a threat to the security of the State. Could the delegation confirm this interpretation of the law? How was the principle of non-refoulement applied in expulsion or extradition for gross violations of human rights, he asked?

Addressing the linkages between extradition and enforced disappearance, Mr. Teraya asked about the legal basis on which the Ministry of Justice could refuse extradition to a State where a person could be at risk of enforced disappearance. Echoing the concerns raised by the Committee against Torture, the Co-Rapporteur raised the question of the lack of compliance with the principle of non-refoulement, as Slovakia had accepted diplomatic assurance from States where an extradited person could be at risk of torture.

As far as the prohibition of secret detention was concerned, what provisions were in place to guarantee access to the Public Defender of Rights to all places of detention. The Co-Rapporteur also raised concern that the official registers of detained foreigners did not include all categories of information that were required by the Convention.

Mr. Teraya reiterated the concerns raised by the United Nations and the European Union anti-torture bodies about Slovakia’s failure to respect fundamental safeguards in practice. Both bodies had objected to the legal provisions that allowed the police to not inform the family about the whereabouts of a detainee “when such information might frustrate clarification and investigation in the case”.

MILICA KOLAKOVIÆ-BOJOVIÆ, Committee Co-Rapporteur for Slovakia, welcomed the adoption of a new law which provided a broad definition of a victim and which strengthened the compliance with the European Union Victims Directive and with the more challenging requirements of the Council of Europe European Convention on the Compensation of Victims of Violent Crimes.

Emphasizing the obligation of States parties to the Convention to provide prompt, fair and adequate reparation and compensation to victims, the Co-Rapporteur asked about the procedure to get the compensation for victims of all crimes, both according to the Victims Act and through a regular judicial procedure. How many claims were made annually, how many were approved and what was the budget approved for this purpose?

Beyond monetary compensation, the Victims Act did not stipulate other means and forms of reparation prescribed by the Convention, i.e. rehabilitation, restitution or guarantees of non-repetition. What other measures of reparations were available to victims of crimes in Slovakia?

Turning to the right to true identity, Ms. Kolakoviæ-Bojoviæ recalled the concerns that the Committee on the Rights of the Child had raised about the use of “baby boxes” that allowed for the anonymous abandonment of children. How was their continued use in compliance with article 25 of the Convention, she asked? She also requested the delegation to explain the provision of the law on adoption which stated that adopted children had the right to obtain information about their biological parents unless such information could cause them harm.

Replies by the Delegation

The delegation explained that the detention of foreigners was regulated by the directive from the Presidium of the Police, which contained the duties and the course of action by the police during the placement of the person in detention.

As far as the custodial registry was concerned, the delegation clarified that the Criminal Investigation Department of the Presidium of the Police was in charge of the diary of case files, which served for the needs of the police force. The new information system was being developed and would enable electronic information about case files. The police only kept the register of persons whose liberty was restricted according to the provisions of the Criminal Code, which was not a register of persons deprived of liberty.

The Ministry of Justice had a wide range of options to deny extradition of a person, including if there was a justified concern that a person would face persecution in the requesting State including on the grounds of race, religion, sex or ethnicity. The Ministry would also deny extradition if there was a risk of the death penalty.

In terms of diplomatic assurances, Slovakia only accepted those that stated that the extradited person would be treated the same or better than in Slovakia. Whenever sensitive cases were discussed, the Ministry for Foreign and European Affairs was consulted and involved in the follow up. In a recent case, Russia had provided diplomatic assurances, a person had been extradited, and staff from the Slovak consular services in Russia continued to visit the person in prison and monitor the conditions.

Other forms of compensation and reparation were possible in addition to monetary one, a delegate said, citing a possibility of apology, including public apology, or ceasing and desisting orders. In most criminal proceedings, the victims claimed monetary compensation. The monetary fund for victims was funded through criminal fees and penalties and out of court settlements in criminal cases in which the prison sentence was low. It usually took six months to approve a compensation request; in 2018, some 300 had been granted.

The Public Defender of Rights currently did not have the mandate to visit places of detention, which might change once the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was ratified. Slovakia had signed this instrument in 2018. In terms of the establishment of a national prevention mechanism, the Government was discussing the mechanism’s modality with the three independent public institutions - Public Defender of Rights, the Office of Defender of Children’s Rights and the Commissioner for individuals with disabilities. The intention was to establish the mechanism prior to ratifying the Optional Protocol.

The Victims’ Rights Act provided for the right of all victims of crimes to basic psychological assistance, the right to information and legal aid, and the evaluation of risk of secondary and repeated victimization for particularly vulnerable victims. Victims were also entitled to housing assistance, a service that had been provided for a long time by non-governmental organizations, especially for women victims of domestic violence and their children. The new Act sought to establish an “all-in-one” organization - any organization applying for accreditation and funding from the Ministry of Justice had to have the in-house capacity to provide psychosocial, social and legal help to victims of crimes. At the moment, 10 such organizations were active in the country.

Administrative decisions by the Border and Alien Police were often challenged in court. All asylum-seekers and other foreigners had the right to a State-provided legal assistance to challenge administrative decisions and extradition or expulsion orders.

The principle of non-refoulement was enshrined in the law. The Ministry of Justice had the discretion to approve the extradition of a person whose conduct was contrary to the safety of the Slovak Republic. The Act on Foreigners provided a legal basis for the denial of expulsion or extradition of a foreigner, which included the risk of persecution.

As for the recommendations made by the Committee against Torture, Slovakia said that prior to accepting diplomatic assurances, the Ministry for Foreign and European Affairs carefully assessed the situation in the requesting country. It also provided regular follow up and monitoring, and it kept the Committee against Torture abreast of all developments.

There had been only three extradition requests, all to Russia. Because the extradition process was rather rare, it perhaps was best to leave the process at the discretion of the Ministry of Justice, with support from the Ministry for Foreign and European Affairs.

Baby boxes had been in place since 2004 and aimed to counter baby abandonment. A baby could be left in this “saving nest” until the sixth week following the birth. The baby would be put up for adoption only after a period of time which allowed the mother to change her mind. Slovakia firmly believed that this was a humane approach that aimed to protect the right to life of those young children. Currently, there were 20 baby boxes throughout the country in which 58 children had been left during the 2004-2017 period. Of those, six women, or one in nine, had changed their mind and reunited with the baby.

Follow-up Questions by the Committee Experts and Replies by the Delegation

In their follow-up questions, Committee Experts asked the delegation about the human rights training provided to the judiciary, prosecutorial staff and law enforcement officers. What were the barriers to including a training on enforced disappearance in the already well-established training and capacity building programmes.

MOHAMMED AYAT, Acting Committee Chairperson, remarked that the Committee often reiterated concerns that other human rights treaty bodies had raised. This intended to highlight the importance of an issue, especially if it was not yet resolved.

An Expert stressed the importance of establishing in law the competence of the Slovak judiciary for universal jurisdiction for enforced disappearance, including extraterritorial universal jurisdiction. This was a requirement and a necessity under the Convention.

The delegation explained that the judicial academy offered training, including human rights training, and that all new courses had to respond to a stated need. This also applied to introducing a training on enforced disappearance. In addition, Slovakia needed expertise on the issue and would welcome the Committee’s support in this regard.

Universal jurisdiction could be established if required by an international treaty, a delegate said, adding that further clarifications would be provided to the Committee in writing.

Concluding Remarks

KOJI TERAYA, Committee Co-Rapporteur for Slovakia, in his closing remarks said that the Committee was particularly impressed by the definition of the crime of enforced disappearance as an autonomous crime and the interpretation of the definition of enforced disappearance which was in accordance with international jurisprudence. The next important step must be the implementation of the Convention and the laws. In this sense, the Co-Rapporteur emphasized the importance of awareness raising, including in cooperation with non-governmental organizations.

MILICA KOLAKOVIÆ-BOJOVIÆ, Committee Co-Rapporteur for Slovakia, in her closing remarks, thanked the members of delegations for their openness and the constructive dialogue.

JURAJ PODHORSKÝ, Permanent Representative of Slovakia to the United Nations Office at Geneva, concluded by reassuring the Committee that Slovakia saw the dialogue with the Committee as an opportunity where all could learn how to reinforce the implementation of the Convention, which was an essential human rights instrument. Turning to the delay in submitting the replies to the list of issues, Mr. Podhorský urged the Committee to consider the challenges that small States faced in meeting all their commitments as responsible States. Finally, he stressed Slovakia’s conviction that the fruitful and constructive discussion would bear fruit in terms of adopting additional measures and enhancing the further implementation of the Convention in the country.

MOHAMMED AYAT, Acting Committee Chairperson, thanked the delegation for all their efforts to make this dialogue constructive.


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CED19.08E