A/HRC/31/57/Add.3
52.
The Special Rapporteur notes the recent efforts made to strengthen procedural
safeguards by introducing a number of legal amendments. According to the information
provided, the ratio of plea bargaining to total convictions has dropped further; the period of
January-June 2015 saw a further drop in the ratio to 64.7 per cent, a decrease of 4.2 per cent
compared to the same period in 2014.
53.
With regard to the prosecution of cases relating to torture, the Special Rapporteur
stresses that obstacles to prosecution, such as amnesty, pardons, statute of limitations or
prosecutorial discretion to decline prosecution, are not permissible in international law.
Cases of torture must be prosecuted; the only legitimate limitations to this obligation are
lack of evidence and the duty to respect guarantees of fair trial and due process of law. The
Special Rapporteur notes information according to which prosecutorial discretion to initiate
prosecution has never been used in relation to cases of torture.
54.
While plea bargaining is not banned in principle, any exercise of prosecutorial
discretion in this regard must be subject to scrutiny and to consultation with victims and
their families. Importantly, plea bargaining should not be used by defendants who bear or
share responsibility for torture to testify against other co-defendants to escape serious
punishment.
55.
With regard to the national preventive mechanism under the Office of the Public
Defender (Ombudsman), the Special Rapporteur learned that, apart from an isolated
incident in 2013 when members of the Office were not granted access to a police office, no
case of substantial obstruction by the authorities to the Ombudsman when entering prison
or police facilities has been reported in the recent past.
56.
The Special Rapporteur did, however, receive reports that members of the Special
Preventive Group, acting as the national preventive mechanism, were not allowed to bring
photographic equipment into prisons during their visits. Given that an important aspect of
the methodology laid down by the Optional Protocol to the Convention against Torture is
the prerogative of the national preventive mechanism to not merely observe but also
document any violation that it may witness, the Special Rapporteur welcomes the adoption
on 18 May 2015 of an amendment to the Imprisonment Code removing the abovementioned restrictions. Regrettably, the amendment will not enter into force until 1
September 2016.
1.
Office of the Chief Prosecutor
57.
The Special Rapporteur welcomes the announcement made by the Chief Prosecutor
in March 2015 of the plan to create a department with an investigative mechanism within
the Office of the Chief Prosecutor to deal with, inter alia, the large backlog of cases of
torture and ill-treatment from the period 1994-2004. Authorities estimated that more than
8,000 victims of abuse from that period await access to remedies, but provided no
documentation to support that figure.
58.
While the Special Rapporteur understands that the investigative mechanism of the
Office of the Chief Prosecutor is not intended to be a substitute for the independent
investigation mechanism envisaged in the discussions led by the Inter-Agency Council on
Combating Torture and Other Forms of Degrading and Inhuman Treatment or Punishment
(see paras. 62-68 below), it is unclear how the new department will interact with the
mechanism or whether it will deal only with the backlog or also with ongoing or future
cases of torture or ill-treatment.
59.
The Special Rapporteur understands that, to date, the department has not announced
any investigation of cases of torture or ill-treatment.
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