CAT/C/NER/CO/1
(f)
Act No. 2011-42 of 14 December 2011, which sets out the rules on legal and
judicial assistance and establishes a public administrative body known as the National
Agency for Legal and Judicial Assistance;
(g)
Act No. 2018-74 of 10 December 2018 on protection and assistance for
internally displaced persons;
(h)
The establishment of an interministerial committee responsible for drafting
periodic reports for submission to treaty bodies.
6.
The Committee also welcomes the establishment by the State party of the National
Human Rights Commission pursuant to Act No. 2012-44 of 24 August 2012.
C.
Principal subjects of concern and recommendations
Definition of torture
7.
While noting the constitutional provisions prohibiting torture, as well as legal
provisions criminalizing, under other offences, certain acts constituting or amounting to
torture or ill-treatment, the Committee is concerned about the absence of a definition of
torture and by the fact that the offence of torture is not specifically criminalized, with the
result that article 1 of the Convention has not been implemented and cannot be invoked
before national courts. While taking due note of the State party’s assurance that the
parliament has made good progress towards adopting the 2014 bill on the criminalization of
torture, the Committee is concerned that only acts of torture classified as a “serious
offence”, involving the death of the victim, would be punishable by imprisonment of 10 to
20 years, while the penalties provided for the “offence” of torture would range from only 1
to 5 years’ imprisonment, which is contrary to article 4 of the Convention (arts. 1, 2 and 4).
8.
The State party should expedite the adoption of the law criminalizing torture,
ensuring that it complies with the Convention and that it defines and criminalizes
torture in accordance with articles 1, 2 and 4 of the Convention. The State party
should also ensure that offences of torture cannot be time barred, are excluded from
amnesties and are punishable by appropriate penalties that take into account their
grave nature, in accordance with article 4 of the Convention.
Fundamental safeguards
9.
The Committee is concerned that the provision of fundamental safeguards is subject
to numerous shortcomings, including: (a) the absence of a legal provision establishing the
right of all persons deprived of their liberty to be informed of their rights, the reasons for
their arrest and any charges brought against them; (b) the fact that defendants who speak
other languages, or are illiterate, allegedly sign statements that concern them without
understanding their content; and (c) the fact that persons may be held in police custody for
up to 30 days in cases of terrorism. The Committee is concerned about the procedure
whereby doctors appointed by the police certify that persons deprived of their liberty have
not been subjected to torture (art. 71 (5) of the Code of Criminal Procedure). The
Committee points out that, according to the Manual on the Effective Investigation and
Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (Istanbul Protocol), the absence of a medical report cannot be interpreted as
proof that a person has not been subjected to torture. The Committee is therefore concerned
that the procedure in place might fail to identify some cases of torture. Furthermore, the
Committee is concerned that the State party has not provided information on investigations
carried out in cases where doctors are unable to conclude that no torture has occurred. The
Committee is also concerned about the persistence of the practice known as mise à
disposition, whereby suspects are brought before the judicial authorities without a warrant,
which constitutes arbitrary detention. The Committee is concerned about the many
instances in which persons are held in police custody beyond the legal time limit of 48
hours (art. 71 of the Code of Criminal Procedure), the incomplete nature of prison records,
reports that access to justice is hindered by the lack of judges and lawyers in the country
and the fact that legal aid is difficult to obtain in practice, despite the establishment of the
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