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COMMITTEE AGAINST TORTURE CONSIDERS REPORT OF MAURITIUS

20 November 2017

The Committee against Torture this afternoon completed its consideration of the fourth periodic report of Mauritius on its implementation of the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Introducing the report, Maneesh Gobin, Attorney-General and Minister of Justice, Human Rights and Institutional Reforms of Mauritius, said that the amended Criminal Code had incorporated the definition of torture as set out in article 1 of the Convention, whereas the Combatting of Trafficking in Persons Act in 2009 had given effect to the United Nations Protocol to prevent, suppress and punish trafficking in persons and protect and assist victims of trafficking. Other measures included the Police Complaints Act in 2012 which provided for the setting up within the Human Rights Commission of a police complaints division to investigate complaints made against members of the police force. The Protection of Human Rights Act had also been amended in 2012 in order to strengthen the National Human Rights Commission. In order to address police brutality, the Government had established an Independent Police Complaints Commission, to be chaired by a former judge of the Supreme Court.

In the ensuing discussion, Committee Experts raised the issue of the full incorporation of the Convention into domestic legislation, and the principle of the absolute prohibition of torture under any circumstances. They expressed concern that the penalty for torture did not correspond to the grave nature of the offence. On the other hand, Experts expressed satisfaction that the National Preventive Mechanism Division in charge of implementing the Optional Protocol to the Convention was fully operational since June 2014 within the framework of the National Human Rights Commission, and that it visited places of detention and was empowered to investigate complaints by detainees. Experts further inquired about the number of investigations made by the Police Complaints Division, measures to prevent death in police custody, police brutality, video and audio recording at police stations, excessive length of pre-trial detention, especially in drug-related cases, domestic violence and criminalization of marital rape, lack of a national asylum framework for ensuring international protection, the application of the Extradition Act, prison conditions and overcrowding, reparation or redress for victims of torture and their families, maltreatment and sexual exploitation of children, especially of street children, labour trafficking, the treatment of minors in detention and trials, the right of detainees to access medical examination and a lawyer, the principle of deduction of pre-trial detention from the overall sentence, training on Convention provisions, and the independence of the National Human Rights Commission and the Independent Police Complaints Commission.

In concluding remarks, Mr. Gobin expressed thanks for the opportunity to engage in a constructive and interactive dialogue with the Committee. He reassured the Committee that one of his priorities would be that Mauritius would live up to its commitment to uphold the highest standards of human rights. Torture remained an unacceptable violation of human rights which should be objected to vehemently.

Jens Modvig, Committee Chairperson, reminded that the Committee against Torture had reviewed its guidelines for follow-up on selected topics within one year and that it had invited States parties to submit a plan of implementation of several recommendations. Mr. Modvig encouraged that initiative as a way to extend the dialogue with the Committee.

The delegation of Mauritius included representatives of the Attorney-General’s office Ministry of Justice, Human Rights and Institutional Reforms, the Prime Minister's Office, the Mauritius Prisons Services, and the Permanent Mission of Mauritius to the United Nations Office at Geneva.

The Committee will next meet in public on Tuesday, 21 November, at 3 p.m. to finish the consideration of the sixth periodic report of Bulgaria (CAT/C/BGR/6).

Report

The fourth periodic report of Mauritius can be read here: CAT/C/MUS/4.

Presentation of the Report

MANEESH GOBIN, Attorney-General and Minister of Justice, Human Rights and Institutional Reforms of Mauritius, said that Mauritius would continue to play a constructive role in upholding human rights principles and in meeting its obligations under the human rights conventions to which it was a party. The Government had recently enacted several new pieces of legislation and had amended several others in order to comply with international human rights instruments. It had enacted the Criminal Code Amendment Act in 2003, which incorporated the definition of torture as set out in article 1 of the Convention; and the Combatting of Trafficking in Persons Act in 2009, which aimed to give effect to the United Nations Protocol to prevent, suppress and punish trafficking in persons and protect and assist victims of trafficking. Other measures included the Police Complaints Act in 2012, which provided for the setting up, within the Human Rights Commission, of a police complaints division to investigate complaints made against members of the police force; the National Preventive Mechanism Act in 2012; the Criminal Appeal Act which had been amended in 2013; the Protection from Domestic Violence Act which had been amended in 2016; the Independent Police Complaints Commission Act amended in 2016; the Prevention of Terrorism Act amended in 2016; and the Social Integration and Empowerment Act amended in 2016. The Protection of Human Rights Act had also been amended in 2012 in order to strengthen the National Human Rights Commission. With those amendments, the Commission had undergone profound structural changes with the creation of a Human Rights Division, a Police Complaints Division, and a National Preventive Mechanism Division. In order to address police brutality, the Government had established an Independent Police Complaints Commission, to be chaired by a former judge of the Supreme Court.

As for trafficking in persons, the Government had set up an inter-ministerial committee under the aegis of the Attorney-General’s Office to look into the issues related to trafficking in persons, including children. The Committee was finalising the draft national action plan to address the problem in a more effective and holistic manner. The Committee had set up a capacity-building programme in collaboration with the United States embassy for the training of stakeholders in combatting trafficking in persons. Since Mauritius had foreign workers mainly from India, Bangladesh and China, the Police Department had tightened vigilance and control at entry points to prevent illegal entry and exploitation of foreign workers. Domestic violence was another matter of great concern for the Government, which had strengthened the relevant legislative framework, capacity-building, awareness campaigns, monitoring and evaluation, and advocacy through media. The Protection from Domestic Violence Act had been amended in 2007, 2011 and 2016 in order to strengthen the enforcement mechanism and provide better protection for victims of domestic violence. The Government had also set up a National Coalition against Domestic Violence Committee to work on an appropriate framework to enhance the protection of victims of domestic violence.

Concerning the protection of children, the Child Protection and Care Bill was one of the priority pieces of legislation which was expected to be introduced in the National Assembly in 2018. As for the provisional charge, the Government intended to come up with a modern legal framework modelled on the United Kingdom Police and Criminal Evidence Act to address the present system of provisional charges. The Government regarded torture as one of the worst forms of human rights violations and it fully supported international initiatives to end that abominable practice wherever it occurred. In that respect, Mauritius reaffirmed its sovereignty over the Chagos Archipelago, which formed an integral part of its territory under both international and domestic laws. The Government condemned the illegal excision of the Archipelago from the territory of Mauritius in 1965 by the United Kingdom and the shameful eviction of Mauritians of Chagossian origin from the Archipelago.

Questions by Country Co-Rapporteurs

ALESSIO BRUNI, Committee Expert and Country Co-Rapporteur for Mauritius, raised the issue of the full incorporation of the Convention into domestic legislation, and the principle of absolute prohibition of torture under any circumstances. Could torture of suspects be justified in cases of emergency, such as terrorism?

The Committee had previously expressed concern that the penalty for torture did not correspond to the grave nature of the offence. Would it be possible to revise section 78 of the Criminal Code and bring it in line with article 4 of the Convention?

Mr. Bruni expressed satisfaction that the National Preventive Mechanism Division in charge of implementing the Optional Protocol to the Convention was fully operational since June 2014 within the framework of the National Human Rights Commission, and that it visited places of detention and was empowered to investigate complaints by detainees. How many complaints had been investigated since June 2014 and what were their results?

As for the Police Complaints Division, how many investigations had been made by it and what was their outcome? What measures had been taken to prevent the recurrence of death in police custody? What were the obstacles that prevented the Police Complaints Division from expediting the determination of complaints concerning police brutality? What was the status of the Police and Criminal Evidence Bill? Was there progress on the installation of video and audio recordings at police stations and on the improvement of methods of investigation based on scientific lead evidence?

Mr. Bruni raised concern about the excessive length of pre-trial detention, especially in drug-related cases. What measures did the authorities plan to take to reduce the length of pre-trial detention?

Turning to domestic violence, Mr. Bruni inquired about what had been done towards the adoption of all legislative texts since the submission of the report.

With respect to laws to grant refugee or asylum status to foreigners, did Mauritius respect the principle of non refoulement as contained in article 3 of the Convention? Was the State party considering the possibility of adhering to the 1951 Convention on the Status of Refugees and its 1967 protocol, as well as ratifying the 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa? Was Mauritius ready to enact legislation and establish a national asylum framework for ensuring international protection, which included procedures for refugee status determination?

On prison conditions, Mr. Bruni reminded that the Eastern High Security Prison of Melrose had become operational in March 2014 and it had hosted 608 inmates at the end of December 2015. However, the new prison was not sufficient to solve the problem of prison overcrowding. The occupancy rate had reached an average of 117 per cent. Would new prisons be able to significantly reduce prison overcrowding? Did the Government plan to take non-custodial measures for minor offences, such as electronic ankle bracelets, community service or work of public utility, in order to reduce or eliminate overcrowding in prisons?

ABDELWAHAB HANI, Committee Expert and Country Co-Rapporteur for Mauritius, inquired about the existence of specific training on the provisions of the Convention and of the Optional Protocol. What kind of training on the Istanbul Protocol was provided to medical and security staff, as well as to lawyers and judges? Could more information be provided on the complaints received from detainees and their outcomes?

Turning to domestic violence, Mr. Hani asked about local committees on domestic violence and about training provided to those persons who worked in local committees. Had the State party studied the outcomes of the national action plan to fight domestic violence? What steps had been taken to reduce marital violence?

What was the follow-up on the cases sent to the Police Complaints Division? What measures did the State party intend to take to ensure the independence of the Police Complaints Division?

How could one explain the contradiction between the high number of persons in pre-trial detention and the existence of a good monitoring mechanism on paper? Could the period of pre-trial detention be deduced from sentences? What measures had been taken to ensure that the transformation of the Beau Bassin prison into a detention centre would go ahead?

With respect to prison violence, did officers working in detention centres use extreme force? Was detailed disaggregated data on prison violence available? What were the criteria of independence of the National Preventive Mechanism? Was there a plan in place to fight suicide in prisons?

There were no provisions for reparation or redress for victims of torture and their families. Remedy had to go beyond financial compensation. As for the prohibition of the use of statements obtained through torture as evidence in any proceedings, Mr. Hani asked why certain inquiries against public officials were still pending.

Was information available about reports of maltreatment and sexual exploitation of children, especially of street children?

What was the number of complaints received by the Government about ill-treatment of the Chagos Islanders?

What were the measures to ensure that anti-terrorism legislation did not constitute legal means of incarceration without evidence?

Questions by Committee Experts

What was the background for the simplification of the Extradition Law and did it incorporate the principle of non refoulement?

What was the status of criminalizing marital rape? Did the Ministry of Justice also gather information about domestic violence, in addition to the Ministry of Gender Equality? There was a problem of underreporting of rape and trafficking due to fear of retaliation and lengthy court processes. Mediation and arbitration were used to process cases of trafficking in persons. Were there criminal penalties for labour trafficking?

How was the sentence determined if the time spent in pre-trial detention was not taken into account? What was the status of double jeopardy, namely retrying someone in the same instance? Were minors treated in the same way as adults? At what age could a minor be considered ready to hold criminal responsibility?

Experts raised the issue of frequent reports of police brutality and abuse when they arrested children. Had there been any positive developments regarding the improvement of the situation of children in detention and their access to fundamental legal safeguards?

JENS MODVIG, Committee Chairperson, inquired about the right of detainees to access medical examination. Did that right automatically apply? Would the State party bring the exercise of that right in line with international standards? Did detainees have the right to access a lawyer at any time? How effective were mechanisms for victims’ remedies? How many cases of torture had been brought to the Supreme Court for redress and what were their outcomes?

Replies by the Delegation

MANEESH GOBIN, Attorney-General and Minister of Justice, Human Rights and Institutional Reforms of Mauritius, explained that the provisional charge would be linked with the upcoming Police and Criminal Evidence Bill. Mauritius had used the provisional charge for nearly 100 years. When a person was arrested, she or he had to be brought in front of a judicial officer as soon as possible. However, before starting a trial, evidence and circumstances of the case had to be established. The provisional charge, therefore, concerned the period after the arrest and before the trial. Courts had developed that practice in order to prevent tampering with evidence and to prevent the person arrested from committing further offences. The Magistrate was presented a charge sheet and the police officer informed of the need to complete his enquiry. With the provisional charge, the court kept a record of the complaints made in relation to that person. After the provisional charge, the formal charge was used. Bringing a sudden change to that system would be dangerous because investigators would need to be trained accordingly.

Mr. Gobin noted that bail was a matter of risk: the risk of releasing a potentially guilty person, or the risk of keeping an innocent person incarcerated. The majority of cases before the Bail and Remand Court were drug-related cases. Mauritius had experienced drug trafficking cases and one of the causes of the delay of investigations was due to the international ramification of drug trafficking and more often than not, the person was kept in jail. In that balancing exercise, more often than not a person was kept in detention in order to avoid the risk of absconding, especially in cases of international drug trafficking crimes.

It was not correct that the Court of Appeal did not have enough power to modify, reverse, or confirm decisions of the Court of First Instance. The Court of Appeal said that the findings of facts were not to be disturbed. The Court of Appeal based itself on files and its judges were not in the same position of those of the Court of First Instance. The Court of Appeal did not intervene in what had happened unless it was flagrant. The system worked and Mauritius did not plan any changes.

The Independent Police Complaints Commission would be created this year, or at the latest the first quarter of next year. A former judge had already been identified to head it, and the premises and budget had already been set. The Independent Police Complaints Commission would be able to appoint staff in all independence.

Concerning the revocation of a member of the National Preventive Mechanism, the Constitution provided that after a general election, there was a possibility to revoke political appointments made by the former Government. This was invoked in the revocation of that member, and the vacancy would be filled. Further on the National Preventive Mechanism, Mr. Gobin said that he was willing to be guided by the Committee on relevant models of inspiration because the prevailing system was being abused in Mauritius and was impossible to control, including the use of mobile phones and drugs in prisons. The Independent Police Complaints Commission would be able to hold inquiries on this situation.

Access to a legal representative of choice was guaranteed from the moment of arrest and the system worked very well.

Mr. Gobin noted that the Convention provisions were sufficiently implemented in section 78 of the Criminal Code. As for bringing that section into line with article 4 of the Convention, the Government was ready to consider it positively. There were no exceptional circumstances under which torture would be acceptable, Mr. Gobin insisted.

As for the National Preventive Mechanism and the Police Complaints Division, there were no records of complaints addressed specifically to the Mechanism, whereas since 2012 the Police Complaints Division had received a total of 3,400 complaints. There was one case of death in custody and the inquiry had been completed. The measures taken to prevent death in police custody included the installation of cameras in police detention centres and cells, and frequent visits and patrols by police officers which were recorded. Non-governmental organizations had access to detainees, and training and sensitization campaigns were organized for prison staff. In addition, psychologists were recruited. All items of clothing provided to detainees were controlled.

As for the excessive length of pre-trial detention, Mr. Gobin explained that it involved cases mostly related to drug-trafficking cases with international ramifications. On the use of non-custodial measures, community service orders were already in place and they worked well. They were routinely used by magistrates with the assistance of the Probation Office. The community service was performed at authorised places, such as social and religious places. The Government had considered the use of electronic bracelets, but they had not been introduced due to high costs. As for the installation of video and audio surveillance in police stations, it was already in place in interrogations rooms and cells.

The Protection from Domestic Violence Act had been amended several times and had provided protection to spouses and other persons living under the same roof. The 2007 amendment had provided better services to victims and it had strengthened enforcement mechanisms. Wide powers had been given to courts. In March 2014 an Advisory Committee had been set up under the aegis of the Ministry for Gender Equality. The definition of domestic violence had been expanded to include any of the following acts: wilfully inflicting a wound or a blow, intimidation, harassment, stalking, brutality or cruelty, confining or detaining the spouse or child, threatening damage to the property of the spouse, depriving the spouse of resources to which he or she was entitled to, and eviction from residence.

As for the refugee or asylum status, Mr. Gobin explained that Mauritius had particular circumstances with respect to the size and density of the population, and limited resources. Thus, granting refugee or asylum status posed serious problems for the authorities. The Government did offer assistance on a case-by-case and in resettlement to friendly countries. Mauritius was not considering acceding to the 1951 Convention on the Status of Refugees and its 1967 protocol, nor ratifying the 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa.

The 1970 Extradition Act had been based on the Commonwealth model of a dichotomy regime. The new Extradition Act of 2017 stipulated safeguards when persons were sent to third countries in order to avoid ill-treatment and discrimination.

With respect to training on Convention provisions, Mr. Gobin explained that seminars, workshops and training courses on human rights and United Nations human rights treaties had been provided to lawyers and judges. But there had not yet been any specific training on the Convention. The National Preventive Mechanism, however, had conducted a number of trainings for prison officers. The specific training on the Istanbul Protocol had only been organized for security personnel.

The National Preventive Mechanism had very wide powers, such as conducting visits to detention facilities, investigation of complaints made by detainees, and making recommendations.

The Independent Police Complaints Commission should be set up during 2017. The budget had already been approved and it would be up and running soon. There was no redress apart from monetary compensation, as well as administrative compensation without a court case.

As for the ill-treatment of Chagos Islanders, there were no specific complaints because they were considered full-fledged citizens of Mauritius. However, their uprooting was forceful and as such it constituted a form of ill-treatment. The Chagossian Welfare Fund assisted those citizens and their descendants in social integration.

The 2002 Prevention of Terrorism Act was not in any way used to incarcerate anyone without evidence, and it was in line with the Constitution. The National Anti-Terrorism Strategy was in line with the corresponding strategy of the United Nations.

Rape was criminalized under the Criminal Code, but there was no specific statutory provision on marital rape. It was the view of a number of legal practitioners that the existing offence of rape was sufficient to cover marital rape.

The 2009 legislation on trafficking in persons contained all the United Nations safeguards. However, there was no prosecution of trafficking in persons due to the tendency of prosecutors to continue using other legislative acts to prosecute such crimes. A capacity-building exercise was being implemented in cooperation with the United States embassy in order to bring about awareness about the new anti-trafficking legislation. As of October 2017, only two cases had been prosecuted under the Anti-Trafficking Act.

Turning to the issue of the possibility of re-trial, there was no question of double jeopardy. Reopening of the case could occur when fresh evidence came to light. That fresh evidence should be compelling and have direct influence on the conviction. On deducting of pre-trial detention from the sentence, Mr. Gobin confirmed that pre-trial detention was deducted. Relevant legislation would be adopted soon.

As for the juvenile justice system, if the co-accused was an adult, the case would be tried in a normal court. But the juvenile would benefit from safeguards, such as the presence of a guardian at all times. The Government was currently considering the Juvenile Justice Bill to address certain deficiencies in the juvenile justice system. There were no recorded case of police brutality or abuse of children.

There was one case of torture perpetrated by police officers. A suspect had died while in police custody. Four police officers had been prosecuted but had remained unpunished due to the lack of evidence. The Supreme Court had, nevertheless, condemned in very harsh terms torture and ill-treatment and the family of the victim had been awarded a sizable monetary compensation. In another case of death in custody, five police officers had been arrested and remained in custody. There were three pending cases of police brutality, Mr. Gobin said.

The delegation said that prison overcrowding had been sorted out with the improvement of capacities in the Eastern High Security Prison at Melrose and in prisons for women and girls. Unlike in many other countries, the occupancy rate in Mauritius stood at 70 per cent. The prison staff-detainee ratio was 1:2. There was an attempt not to mingle together remand and regular prisoners. Each prison had a welfare unit, whereas a prisoner council met once a month and there was a follow-up on the outcome of complaints. Prisons were safe for prisoners and mechanisms were in place to ensure adequate standards.

The suicide rate in prisons amounted to one to two cases per year. In 2015 there were three cases of suicide. The authorities were working hard to combat that phenomenon. Every detainee received a medical assessment in order to be placed in an appropriate establishment in line with his or her psychological condition.

Follow-up Questions by Country Co-Rapporteurs

ALESSIO BRUNI, Committee Expert and Country Co-Rapporteur for Mauritius, expressed concern about the independence of the National Human Rights Commission and the Independent Police Complaints Commission.

What were the legal measures implementing the principle that torture was not allowed under any circumstances? The punishment for the offence of torture with a maximum imprisonment of 10 years seemed too mild. Why was the length of pre-trial detention so excessive?

As for granting the refugee status, Mr. Bruni inquired about the case of those persons who were at a risk of torture if they had to leave Mauritius. Mr. Bruni suggested various types of non-monetary redress for victims, such as medical rehabilitation or guarantee of non-recurrence. He noted that the delegation’s response indicted that there was impunity for the crimes of torture.

Turning to marital rape, Mr. Bruni asked about the progress made in adopting the legislation that would criminalize that offence.

Mr. Bruni asked about the new prison of Rodrigues Island. What kind of improvements did that prison offer?

ABDELWAHAB HANI, Committee Expert and Country Co-Rapporteur for Mauritius, stressed that political interference in the work of the National Human Rights Commission should be avoided. The revocation of a member was clearly going against its independence.

What was the status of the draft Police and Criminal Evidence Act? As for the deduction of pre-trial detention from the sentence, Mr. Hani expressed concern about the application of that principle.

Mr. Hani stressed the importance of providing training on Convention provisions to magistrates, namely on confessions extracted under duress. Was the National Preventive Mechanism sufficiently independent and efficient, given the slowness of its investigative procedures? Was there a systematic review of police interrogation methods to ensure that no torture was involved?

What were the results of the introduction of non-custodial measures? There was a relatively high number of complaints about healthcare conditions in prisons.

Follow-up Questions by Committee Experts

Were safeguards for minors taken into account in adult court proceedings? What was the percentage of minors appearing in courts for adults?

Re-trial of the same matter in the same court was problematic. Was the time spent in detention on remand effectively taken into account in the overall sentence?

JENS MODVIG, Committee Chairperson, inquired about the possibility of preventing the breach of medical confidentiality, and about the detention message that was forwarded to the interrogation room.

Replies by the Delegation

MANEESH GOBIN, Attorney-General and Minister of Justice, Human Rights and Institutional Reforms of Mauritius, clarified that from the moment of arrival in the interview room, all the facts and circumstances of the case were recorded. Everything was recorded in hard copy ledgers. As for medical examination of detainees, sometimes the presence of security personnel was requested.

The principle of the deduction of pre-trial detention from the sentence had been established by the Supreme Court. It was already a principle of law. In the common law system, sentencing had always been left to the appreciation of the court. Legislation only set the highest and the lowest sentences. Mr. Gobin reassured that if a case was reopened for trial, it would be tried in a different court.

As for the juvenile justice system, it was up to magistrates to exclude members of the public from the hearings of minors. On the upcoming Police and Criminal Evidence Act, Mr. Gobin stated that police brutality, duress and extraction of confessions under duress were already prohibited.

On the independence of the National Preventive Mechanism, Mr. Gobin said that Mauritius took great pride in the independence of its judges, magistrates and civil servants in general. He assured the Committee that there was no political interference in the work of the mechanism. Independence went both ways. The termination of appointment of the member of the National Human Rights Commission was necessary as explained earlier.

There were no exceptions to torture and ill-treatment, Mr. Gobin emphasised, adding that there was no country where the conviction rate was 100 per cent. The limit for the pre-trial detention was determined on a case-by-case basis. The court decided on a reasonable time.

The delegation explained that prisons would never accept detainees with injuries or without prior medical examination. The general rule was that the confidentiality of a medical examination was respected.

Concluding Remarks

MANEESH GOBIN, Attorney-General and Minister of Justice, Human Rights and Institutional Reforms of Mauritius, expressed thanks for the opportunity to engage in a constructive and interactive dialogue with the Committee. He reassured the Committee that one of his priorities would be that Mauritius would live up to its commitment to uphold the highest standards of human rights. Torture remained an unacceptable violation of human rights which should be objected to vehemently. Mr. Gobin added that the delegation had taken good note of the constructive observations made by Committee Experts. The Government of Mauritius was committed to provide its people with human dignity, and equality of treatment free from torture.

JENS MODVIG, Committee Chairperson, reminded that the Committee against Torture had reviewed its guidelines for follow-up on selected topics within one year and that it had invited States parties to submit a plan of implementation of several recommendations. Mr. Modvig encouraged that initiative in order to extend the dialogue with the Committee.



For use of the information media; not an official record

CAT/17/27E