Bangladesh in the eyes of the UN Committee Against Torture-2

The UN Committee Against Torture (CAT) discussed the rights record of Bangladesh at a meeting in Geneva, Switzerland on 30-31 July. The committee brought about allegations of various types of violations of human rights including enforced disappearance, pre-trial detention and torture in custody. The Bangladesh delegation, led by the law, justice and parliamentary affairs minister Anisul Huq, responded to the allegations there. Later on 9 August, CAT published its findings with a few concerns and recommendations. We reproduce the document here, the first part appeared yesterday, 22 September, and the concluding part today.

Conditions of detention
The committee is seriously concerned:
(a) At reports that prison conditions in the state party are substantially below international standards and have even been described as constituting ill-treatment, or torture in extreme cases;

(b) At the severe overcrowding in prisons, amounting to over 200 per cent occupancy and even more during election periods, in prisons designed to hold 40,000 inmates, resulting to a large extent from the extensive use of detention on remand, which forces prisoners to sleep in shifts, has made even the prison authorities consider establishing makeshift sheds within the jails and has resulted in the holding of some 100 inmates in an abandoned warehouse in January 2019;

(c) About the very poor conditions of detention, which reportedly resulted in 74 deaths in 2018, as well as inadequate sanitary conditions, scarcity of food and drinking water, insufficient toilet and bathroom facilities and beds, inadequate light and ventilation, and the lack of recreational activities and mental stimulation;

(d) About the corruption in the prisons, including the extortion of inmates and their relatives by prison guards so that they can enjoy elementary services, the “mate” system whereby the more senior prisoners control others, including their access to food and conditions of imprisonment, and often mete out punishments on behalf of the prison authorities, and the fact that prisoners face reprisals as soon as they complain;

(e) That only 12 out of 68 prisons in the state party have hospitals and that out of the 170 positions for medical doctors only a dozen are filled, reportedly since doctors fear for their health because of the poor sanitary and hygiene conditions;

(f) About the high number of deaths in custody, which the authorities attribute to natural causes or suicide, but some of which actually result from injuries caused by torture and excessive use of force by the police, as well as poor conditions, the negligence of the prison authorities and the lack of access to treatment. It is also seriously concerned that 11 persons died of illness in prisons between January and March 2019 and that almost all prisoners come into contact with communicable and non-communicable diseases and develop illnesses;

(g) That juvenile prisoners are held with adults, that female detainees may be held with male prisoners and that prisons have not been adapted for inmates with disabilities (arts. 2, 11, 12, 13 and 16).

The state party should:
(a) Urgently take all necessary measures to improve conditions of detention in all places of deprivation of liberty in order to bring them into line with international standards, including the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) and the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules);

(b) Urgently take measures to decrease overcrowding in prisons by ensuring that persons held in pre-trial detention are not kept in custody for an unreasonable period of time and substantially reduce the number of persons held on remand, or in other types of pre-trial detention, by loosening bail requirements and accelerating the process of release on parole, providing for restorative justice and actively promoting alternatives to detention in keeping with the United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules);

(c) Urgently take measures to improve the material conditions in places of deprivation of liberty, including access to food of adequate quality and quantity, better sanitary and hygiene conditions, bedding, lighting and ventilation, as well as recreational and other meaningful activities, and build new and refurbish older prisons;

(d) Eradicate corruption in prisons, including the extortion of prisoners and their relatives, take steps to address the collusion of custodial staff with criminal gangs in the prison system, ensure the right of detainees to be treated with humanity and dignity and reduce violence, including inter-prisoner violence;

(e) Maintain the “zero tolerance” policy against custodial death owing to omission or commission on the part of law enforcement agencies and against torture or any other forms of ill-treatment, as stated by the minister of law, justice and parliamentary affairs during the constructive dialogue with the committee, and ensure prompt and independent investigations into all deaths in custody, regardless of their causes;

(f) Ensure adequate health care by hiring, as a matter of priority, additional medical doctors to fill all the vacant positions, including specialists, and nurses who are available around the clock, ensure prompt referrals and delivery by ambulances for specialist care outside detention facilities, introduce health screening of inmates before admission to places of detention and of the entire inmate population, and take vigorous steps to prevent the infection of prison inmates who are healthy on arrival;

(g) Put in place systems to separate juveniles from adult prisoners and convicted prisoners from remand detainees, strictly separate female from male detainees and ensure that women are detained in gender-sensitive conditions, and ensure that inmates with disabilities are held in humane conditions and that prisons are adapted to their needs;

(h) Allow independent monitoring bodies, including international bodies, specialised health bodies and NGOs, to carry out unannounced visits to and medical inspections of all places of detention, and to meet in private with detained persons.

Excessive use of force
The committee is deeply concerned at persistent allegations of excessive use of force by members of the security forces, intelligence services and the police, including the practice of shooting persons at short range in the knee, leg or elbow called “kneecapping”, which often results in permanent disability, including amputation. It is also concerned at reports of violence by the authorities in connection with recent and past elections, including attacks on protesters, seizing polling stations and the use of intimidation and violence to suppress votes (arts. 2, 10, 12, 13 and 16).

The state party should:
(a) Establish an effective complaints mechanism for victims of excessive use of force and ensure that they do not suffer reprisals for reporting acts of torture and ill-treatment by law enforcement and other public officials and ensure prompt, impartial, effective investigations are carried out into all such complaints;

(b) Provide training to all law enforcement officials on the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials and on the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.

Arbitrary detention
The committee is concerned at reports that in January and February 2018, the authorities arrested almost 5,000 supporters of the opposition Bangladesh Nationalist Party (BNP), including ordinary persons suspected of being opposition sympathisers, ahead of the verdict in the corruption case against the leader of the party, Khaleda Zia. It is also concerned about allegations of thousands of arrests of opposition supporters around the time of the elections and that many of these persons remain in detention. It is further concerned at allegations that individuals have been arbitrarily deprived of their liberty on suspicion of having ties to militant groups (arts. 2, 11, 12, 13 and 16).

The state party should ensure that all detained persons, including political activists, protesters and individuals arrested and detained as part of “crowd control” actions to prevent violence, are afforded, in practice, all fundamental legal safeguards from the very outset of detention (as set forth in paragraph 19 above) and are promptly presented before a judge. It should promptly and effectively investigate all complaints of torture by persons held in the preventive operations described above and either prosecute or release the persons detained, as warranted by the investigations.

Violence against women

The committee welcomes the state party’s stated commitment to combating violence against women. However, it notes with concern reports that in recent years the authorities have prosecuted and convicted perpetrators of rape in only a very small percentage of the cases registered by them and also the reported increase in the number of claims of sexual assault of children received by the authorities in recent years. The committee is concerned at reports that legal barriers deter women who are victims of sexual violence from filing rape claims with the authorities. It is further concerned that a recently added legal provision in the State party, allowing the marriage of girls under 18 years of age in “special cases”, could result in the already high rates of so-called “early marriage” in the country increasing further. The committee is concerned that the state party’s laws criminalise the termination of pregnancy, except where the pregnant woman’s life is at risk, which can result in women experiencing severe physical and mental anguish and distress (arts. 2, 4, 12, 13, 14 and 16).

The committee recommends that the state party:

(a) Ensure that all allegations of gender-based violence against women and girls, especially those involving actions or omissions by state authorities or other entities which engage the international responsibility of the state party under the convention, are thoroughly and effectively investigated, that the alleged perpetrators are prosecuted and, if convicted, are punished appropriately, and that the victims receive redress, including adequate compensation;|

(b) Eliminate the 24-hour time limit to obtain a medical report and file rape claims under the Women and Children Repression Prevention Act of 2000 (amended in 2003);

(c) Eliminate the legal exception to the prohibition of marriage of girls under 18 years of age in “special cases” and the exemption of marital rape of women over the age of 13 from the definition of rape in section 375 of the Penal Code;

(d) Ensure that domestic and gender-based services providing medical and legal services, safe emergency accommodation and shelters for victims of violence against women exist throughout the country and are accessible by all victims of such offences, including non-citizens, who should have access to them;

(e) Review its legislation in order to allow for legal exceptions to the prohibition of abortion in specific circumstances in which the continuation of pregnancy is likely to result in severe pain and suffering, such as when the pregnancy is the result of rape or incest, or in cases of fatal fetal impairment, ensure the provision of post-abortion health care for women, irrespective of whether they have undergone an illegal or legal abortion, and ensure that neither patients nor their doctors face criminal sanctions or other threats for seeking or providing such care.

Trafficking

While appreciating that the state party adopted legislation criminalising sex and labour trafficking in 2012, the committee is concerned at credible allegations that the vast majority of trafficking victims choose not to pursue cases against their traffickers, often because of fear of retaliation and intimidation, as many do not believe that they will receive effective protection from the police. The committee is also concerned at reports of more than 100 reported cases in which Rohingya have been subjected to forced labour and sex trafficking within Bangladesh and that, in some cases, Bangladeshi border guards and military and police officials have been involved in facilitating the trafficking of Rohingya women and children. Moreover, to date the Bangladesh High Court has refused to entertain anti-trafficking cases filed by Rohingya and the authorities have failed to open investigations (arts. 2, 4, 10, 11, 14 and 16).

The state party should:

(a) Register complaints of sex or labour trafficking of Rohingya within Bangladesh and ensure allegations involving official complicity are investigated and prosecuted;

(b) Allow foreign victims of trafficking, including Rohingya, to access government services, including centres for women and child victims of violence, and legal aid and ensure that they are able to bring claims that they are victims of violations before the country’s courts;

(c) Create practical conditions and a climate in which victims of trafficking can receive effective protection from retaliation if they choose to lodge complaints.

Refugees and non-refoulement

The sommittee commends the Government of Bangladesh for respecting the principle of non-refoulement with respect to the more than 1 million Rohingya refugees from Myanmar currently resident on its territory, and its recognition that they would be in danger of being subjected to torture and ill-treatment if returned. The committee regrets that the state party did not provide information about its efforts to respect the principle of non-refoulement in legislation or the data requested by the committee about the countries to which it has returned people and the measures it has taken to ensure that no person is returned to a situation in which he or she faces a risk of torture and ill-treatment (arts. 2, 3, 10, 12, 13, 14 and 16).

The state party should:

(a) Continue to respect the principle of non-refoulement with respect to all Rohingya refugees from Myanmar on its territory;

(b) Adopt a comprehensive law on asylum that is consistent with international human rights standards and norms and is in accordance with article 3 of the Convention;

(c) Establish an individualised procedure through which any individual who raises concerns that he or she faces a real, personal risk of torture and ill-treatment if returned by the State party to another country can seek to remain in Bangladesh on the grounds that returning them would violate the country’s non-refoulement obligation under the Convention;

(d) Provide training to all relevant officials in the State party on the principle of non-refoulement;

(e) Ensure that the authorities put in place measures to identify and provide redress to all survivors of torture and ill-treatment, including non-nationals, and provide them with adequate access to health-care and psychological services;

(f) Consider acceding to the 1951 Convention relating to the Status of Refugees and its 1967 Protocol;

(g) Cooperate with the ongoing investigation by the Prosecutor of the International Criminal Court concerning the commission of crimes involving torture against the Rohingya within its jurisdiction.

Redress and rehabilitation

The sommittee is concerned at the lack of information provided by the state party concerning the redress that has been provided to victims of torture and ill-treatment and at reports that very little redress has been provided by the state in practice. It is further concerned that the Torture and Custodial Death (Prevention) Act provides for very low levels of compensation for victims and makes no provision for rehabilitation, and that compensation awards have not been made under the Act in practice as there have been no convictions under the Act. In that regard, the committee appreciates the statement by the delegation that the government will consider increasing the amount of compensation for victims of torture set out in the Act. The committee is also concerned that Bangladesh maintains a reservation to article 14 of the Convention (art. 14).

The state party should:

(a) Ensure that all victims of torture obtain redress and have an enforceable right to fair and adequate compensation, including the means for as full a rehabilitation as possible. In that regard, the committee draws the attention of the state party to general comment No. 3 (2012) on the implementation of article 14 of the Convention;

(b) Ensure that all victims of torture and ill-treatment in the State party, including refugees resident on the territory of the state party, are able to promptly access appropriate psychosocial services, mental health-care and specialised rehabilitation services and ensure that access to such services is not conditional on the filing of formal complaints of torture or on the conviction of the perpetrator;

(c) Recognising the seriousness of the offence, amend the Torture and Custodial Death (Prevention) Act to provide appropriate compensation for victims of torture and ill-treatment;

(d) Consider withdrawing the State party’s reservation to article 14 of the Convention.

Corporal punishment in law

While noting that article 35 (5) of the Constitution clearly stipulates that “No person shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment”, the committee is concerned that the legislation in Bangladesh permits the imposition of whipping as a punishment and the use of iron bar fetters, and that section 35(6) of the Constitution states that its prohibition against torture does not apply to any legally prescribed punishment (arts. 1, 2, 4, 11 and 16).
The state party should take the necessary legislative measures to eradicate and explicitly prohibit all forms of corporal punishment in all settings, as they amount to torture or cruel, inhuman or degrading treatment or punishment, in violation of the Convention. Notably, the state party should ensure the amendment of the Prisons Act of 1894.

Corporal punishment of children

While taking note of the directives issued in 2010 to stop all forms of corporal punishment in primary and secondary educational institutions and the 2011 declaration by the High Court of Bangladesh that all types of corporal punishment in schools, including caning, beating, chaining and confinement, are “illegal and unconstitutional” and a form of ill-treatment, the committee is concerned that the state party has not outlawed corporal punishment in all settings and that it continues to take place on a broad scale, including in schools (arts. 2 and 16).

The state party should:

(a) Introduce additional amendments in the Children Act, the Penal Code and other national legislation in order to explicitly and clearly prohibit corporal punishment in all settings;

(b) Take all the measures necessary to prevent corporal punishment, including in schools, and investigate and take appropriate action against teachers who continue to apply corporal punishment in educational institutions;

(c) Conduct public information campaigns to raise awareness among the general population of the harmful effects of corporal punishment and encourage non-violent forms of discipline as alternatives to corporal punishment.

Death penalty

The committee is concerned at the numerous sentences handed down prescribing the death penalty. The delegation stated that the Government has been gradually replacing the death penalty with other forms of punishment such as life imprisonment. However, it confirmed that between 2013 and 2017, while 1,119 death sentences were handed down, “only” 130 such sentences were confirmed by the High Court Division, 239 such sentences were commuted and a total of 17 were carried out. The committee is concerned because of the uncertainty these sentences cause to the large numbers of prisoners who have received them, the poor conditions of detention provided for such prisoners and reports that the state party is expanding crimes for which the death penalty may be pronounced, for example, through such laws as the Narcotics Control Act of 2018 (arts. 2, 11 and 16).

The committee urges the state party to establish a moratorium on the death penalty; continue its efforts to commute all death sentences to other punishments; improve the conditions of detention of prisoners on death row; carefully review the application of the Anti-Terrorism Act, the Narcotics Control Act and other relevant laws that may entail the imposition of the death penalty in the light of its international obligations; and consider ratifying the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty.

Follow-up procedure

The committee requests the State party to provide, by 9 August 2020, information on follow-up to the committee’s recommendations on ensuring the full implementation by law enforcement authorities and magistrates of the directives issued by the High Court; on monitoring all places of deprivation of liberty by an independent authority and representatives of NGOs; on establishing a complaints mechanism for persons detained arbitrarily; and on ensuring that members of civil society organisations who have cooperated with the committee in the context of the consideration of the State party’s initial report are protected from any reprisals or harassment, in accordance with the pledge given to the committee by the Minister of Law, Justice and Parliamentary Affairs (see paragraphs 22 (b), 16 (e), 35 (a) and 31 (d)). In that context, the State party is invited to inform the committee about its plans for implementing, within the coming reporting period, some or all of the remaining recommendations in the concluding observations.

Other issues

The committee invites the state party to consider making the declarations envisaged under articles 21 and 22 of the Convention and withdrawing its reservation to article 14 of the Convention.

The committee invites the state party to ratify the Optional Protocol to the Convention and any core United Nations human rights treaties to which it is not yet party, and in particular the International Convention for the Protection of All Persons from Enforced Disappearance.

The committee recommends that the state party grant access to the nine special procedures mandate holders who have requested visits and issue without delay an invitation to the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment; the Special Rapporteur on extrajudicial, summary or arbitrary executions; the Working Group on Arbitrary Detention; the Working Group on Enforced Disappearances; and the Special Rapporteur on the situation of human rights defenders.

The state party is requested to disseminate widely the report submitted to the committee and the present concluding observations, in appropriate languages, through official websites, the media and NGOs and to inform the committee about its disseminating activities.

The committee invites the state party to submit its next periodic report, which will be its second periodic report, by 9 August 2023. To that end, it invites the state party to agree, by 9 August 2020, to avail itself of the simplified reporting procedure in preparing that report. Under that procedure, the committee will transmit to the state party a list of issues prior to reporting. The state party’s replies to that list of issues will constitute its second periodic report under article 19 of the Convention.