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Preliminary observations and recommendations

Spanish

UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Mr. Nils Melzer on the official visit to Argentina – 9 – 20 April 2018

Introduction

From 9 – 20 April 2018, my team and I visited Argentina in order to assess the prevailing situation and challenges in the country concerning the prohibition of torture and other cruel, inhuman or degrading treatment or punishment.

I would like to express my sincere appreciation to the Government of Argentina for the invitation to conduct this visit. I thank the federal and provincial authorities for the excellent cooperation I enjoyed during the visit, and for the many meaningful official meetings with various relevant authorities.

My delegation visited the City of Buenos Aires as well as the provinces of Buenos Aires, Córdoba and Formosa. In Buenos Aires, I had the opportunity to exchange views with officials of the Ministries of Foreign Affairs, Justice and Human Rights, the National Secretariat for Human Rights, the Ministries of Health, Social Development, Interior, Defense and Security, the National Public Prosecutor’s Office, the National Public Defender’s Office, the National Ombudsperson’s Office, the National Penitentiary Attorney, and members of the newly created National Preventive Mechanism. I also met with various authorities in the provinces of Buenos Aires, Córdoba and Formosa. Furthermore, I had exchanges with Argentinian human rights activists, with members of non-Governmental organisations and with members of various indigenous communities, as well as with United Nations agencies in Buenos Aires.

Throughout my visit, my team and I enjoyed unrestricted freedom of movement and access to all places where people are deprived of their liberty and were able to meet with and interview male, female and juvenile inmates in private, in full compliance with the terms of reference of my mandate. In the city of Bueno Aires, we visited the Moyano Hospital, and barrio Zavaleta. In the province of Buenos Aires, we visited Unit 23 in Florencio Varela, Dr. Alejandro Korn neuropsychiatric Hospital in the city of La Plata, Unit IV of the Ezeiza Federal penitentiary, the Centro Cerrado Almafuerte for juveniles, as well as Comisarias I and V. In the province of Córdoba we visited the Complejo Esperanza for juveniles, the Penitentiary Cruz del Eje and its neuro-psychiatric unit, the Penitentiary Bouwer and its Unit 3 for pregnant women and women with children, as well as one of its Units for male inmates, the Establecimiento Penitenciario Nº9 and a community facing eviction in Juarez Celman. In Formosa, we visited the Federal Penitenciary Unit 10, the Mixto Las Lomitas Alcaldia 3, the Alcaldia Policial de Varones, the Comisaria Ibarreta, as well as indigenous communities.

The observations I am presenting today are preliminary and non-exhaustive. Based on the information collected during my mission, I will draft a more comprehensive and updated report that will be presented to the United Nations Human Rights Council in March 2019.

1. Crimes of the past

I wish to acknowledge and commend the significant efforts undertaken by successive democratic Governments of Argentina to hold accountable those responsible for the human rights abuses perpetrated during the military dictatorship. I was particularly moved during my visit to Espacio de la Memoria - Ex- ESMA, a remarkable site of remembrance, truth and justice for the many victims of torture and enforced disappearance perpetrated during the dictatorship. I also had the honour of meeting representatives of the “Abuelas y madres de Plaza de Mayo linea fundadora”, whose relentless and vigorous push for accountability and justice resulted in important trials against high-ranking officers.  At the same time, I note that this process of redress, truth, and accountability is not yet complete, and that many victims are still missing, many cases remain unresolved, and many perpetrators are yet to be brought to justice.

I therefore urge all branches of the Argentinian authorities not to waiver, but to continue their exemplary efforts towards overcoming one of darkest periods in the country’s history. Sufficient resources must be allocated to ensure the timely processing and adjudication of the remaining cases and trials for crimes against humanity so as to prevent any form of impunity and provide, to the greatest extent possible, full redress and rehabilitation to the victims.

2. Legal framework and procedural safeguards

While Argentina’s federal structure gives rise to administrative and normative complexities and challenges, I note with satisfaction that article 75 of the National Constitution gives international human rights treaties precedence over national and provincial laws, thus providing for the direct application of the UNCAT, OPCAT, the ICCPR and various other universal and regional treaties throughout the territory of Argentina.

I am also pleased to report that in my meetings with the judicial, legislative and executive branches of government at both the federal and provincial levels, all officials emphasized their unequivocal commitment to the absolute and non-derogable prohibition of torture and other cruel, inhuman or degrading treatment or punishment.

i. The criminalisation of torture

The definition of the offence of torture is set out in article 144 ter of the Criminal Code. I reiterate the concerns expressed by the Committee against Torture regarding the lack of conformity of the definition with the provisions of article 1 of the Convention. Most notably, the provision does not attribute criminal responsibility for torture to a sufficiently wide range of perpetrators and does not include the purposefulness of the conduct in question as a defining element of the offence.

I therefore urge the authorities to take the necessary measures to ensure the comprehensive criminalisation of torture in full compliance with Argentina’s obligations under UNCAT.

 ii. Monitoring bodies

Regular independent monitoring of all places of detention remains one of the most effective tools to reduce the risk of torture and ill-treatment. I therefore welcome the establishment in Argentina of various federal and provincial bodies that are tasked with the prevention of torture and ill-treatment and the monitoring of detention conditions. In particular, Argentina was one of the first States to ratify the OPCAT in 2004, thus expressing its determination to fight and prevent torture and ill-treatment through an effective system of international and national monitoring. Nevertheless, it took until 2012 for the National Preventive Mechanism (NPM) to be established on the federal level, its members were designated only in December 2017, and the funds allocated to it by law reportedly still have not been fully made available. Moreover, of the 24 local mechanisms which are to assume the NPM’s function at the level of the provinces and the capital city, only five have been established so far, and there seems to be no realistic prospect of the remaining ones to become operational in the near future. I thus note with serious concern that, 14 years after the ratification of the OPCAT, the preventive monitoring system required by that treaty still does not exist in practice for the vast majority of persons deprived of their liberty throughout Argentina.  In addition, I am concerned that some of the existing monitoring bodies, such as the National Penitentiary Attorney, have not been granted full access to detention centres in the visited provinces,

I therefore urge the government of Argentina to make available the necessary financial resources to allow the NPM to implement its mandate effectively and in full compliance with the Paris Principles.   
I further urge the provinces to establish their own local NPMs without further delay, as an essential means of bringing about a whole range of urgently required reforms in the Argentinian detention system as described further below.

Finally, I urge the federal and provincial authorities to ensure that all detention monitoring bodies, whether official or civil society have free and unhindered access to places of deprivation of liberty.

iii. Excessive length of pre-trial detention

According to the information received an average of 60% of persons deprived of their liberty in prisons and police stations are in pre-trial detention. In the course of my visit, I received numerous and consistent complaints from detainees about the perceived excessiveness of their pre-trial detention and the prolonged absence of any meaningful investigative or judicial action taken on the part of the prosecuting or adjudicating authorities for periods up to five years. Alternative measures to detention, such as house arrest and electronic bracelets for suspects posing no threat to public security, seem to be used in exceptional cases only, and deprivation of liberty still appears to be the routine measure imposed by the judiciary in response to any suspected offence. Both the provincial and the federal authorities confirmed the disproportionate use of pre-trial detention as well as serious deficiencies in terms of expediting criminal proceedings. In my view, some cases of excessively prolonged pre-trial detention I encountered during my visit may well amount to cruel, inhuman and degrading treatment in violation of international law. 

I therefore urge the judicial authorities to make use, to the maximum extent permitted by existing law, the application of measures and sanctions alternative to detention.

I further urge the legislative authorities to ensure that the minimum penalty for non-violent offences, such as small scale drug offences, be adapted so as to permit sanctions or measures other than deprivation of liberty, and to refrain from introducing new legislation reducing the minimum age for criminal responsibility or otherwise expanding the use of detention to additional categories of persons or offences

3. Allegations of torture and ill-treatment

Institutional violence by security forces and prison officials seems to be widespread, and impunity rampant. The forensic expert who accompanied my visit conducted a number of medical examinations of inmates, some of which confirmed physical injuries consistent with the testimonies received.

i. Police violence

During my meetings with members of indigenous communities and inhabitants of marginalized neighbourhoods or temporary housings in the provinces of Formosa and Cordoba and the city of Buenos Aires, I received numerous consistent allegations of police violence during peaceful demonstrations against forced evictions or when trying to submit complaints or requests of any kind to the relevant authorities. My team and I also received numerous and consistent reports of police brutality occurring at the time of the arrest. Furthermore, many of the people we interviewed, particularly adolescents, young adults and women from poor and marginalised segments of society, reported that police violence and abuse were frequently used to harass, provoke or intimidate them or, in some cases, to force them to confess an alleged crime or to denounce others. In addition to threats and insults, federal and provincial security forces reportedly resorted to kicking and beating, even against persons who were handcuffed or otherwise physically restrained. I also received several allegations concerning the use of suffocation techniques, most notably the so-called “submarine” treatment, both “wet” (submersion of the head in liquid) and “dry” (covering the head with a plastic bag), particularly during transfers in police vehicles. I have also received reports of police officers making excessive use of firearms (“happy trigger”) at the moment of arrest, including as a means of intimidation.

 I was particularly impressed by the work of local communities and civil society organizations trying to claim their rights and insist on accountability for institutional violence through monitoring, communication and other non-violent means, such as “La Garganta Poderosa” in the Zavaleta community of the City of Buenos Aires.

In this context, I remind the authorities that any unnecessary, excessive or otherwise arbitrary use of force by law enforcement officials is incompatible with the UN Basic Principles on the Use of Force and Firearms (1990) and the UN Code of Conduct for Law Enforcement (1979) and may well amount to cruel, inhuman or degrading treatment or even torture.

ii. Torture and ill-treatment in detention facilities

While it is difficult to make a generalized statement in this respect, in some of the police stations and penitentiaries visited, my team and I have perceived a climate of fear and mistrust between prison officials and inmates. In some institutions, we heard consistent accounts of physical and psychological abuse being inflicted on detainees as a means of punishment for misbehaviour or even as a reprisal for having complained about their conditions of detention. In some police stations and detention centres inmates complained of ill-treatment. Most notably, numerous detainees in Cruz del Eje provincial prison reported having been severely beaten while being shackled to metal beds for several days, or having been held in stress positions in isolation cells for prolonged periods of time. Similarly, in Bouwer prison, detainees reported to have been shackled or handcuffed by their feet and/or hands for periods between several hours and three days.

In some places, inmates and/or visiting family members were reported to have been arbitrarily subjected to invasive, violent and/or humiliating body searches. In some cases, we received reports that prison guards stole goods brought by families during their visits, or that food, hygienic articles and other items allocated by the authorities to prisoners were stolen by the guards for their own use or consumption, or were taken away and then sold to the inmates.

I also took note of several incidents of inter-prisoner violence and self-harm, including one teenager being stabbed to death on 10 April 2018, and the forensic expert accompanying my visit was able to examine several male and female inmates and to confirm severe wounds caused by inter-prisoner stabbing as well as by self-inflicted cuts.

iii. Ineffective investigation of claims of torture and ill-treatment

I welcome the measures taken by the federal authorities to investigate cases of torture and other ill-treatment. In this context, the establishment of the Office of the Special Prosecutor for Institutional Violence is particularly significant and must be commended. However, many of the alleged victims of torture and ill-treatment that my team and I interviewed explained that the complaints they filed were rarely investigated. Indeed, the information we received shows a significant gap between the number of complaints filed and the investigations carried out, resulting in a pervasive culture of impunity among security forces and prison staff.

Particularly in the case of persons deprived of their liberty, I have noted a perceptible reluctance of victims to speak about ill-treatment, both because of their fear of reprisals and their general distrust in the ability and willingness of the judicial authorities to hear their claims. In more than 70% of the reported cases of torture and ill-treatment, alleged victims agreed to register their complaints but refused to file them before the relevant authorities.

In view of these observations, I urge the Argentinian authorities to take all necessary measures to prevent any form of complacency with, or impunity for, torture and other ill-treatment by police forces or prison staff, most notably by ensuring that all relevant allegations are promptly, impartially and transparently investigated by a body independent from the executive branch and with no other institutional or hierarchical connection to the alleged perpetrators.

I also recommend that the authorities strengthen their cooperation with civil society organizations monitoring and recording institutional violence, including those based in marginalized communities. 

I urge the authorities to introduce a system of boxes to collect confidential complaints in detention centres and police stations, to which only the external and oversight control mechanisms have access.

4. Juvenile detention centres

As far as juveniles are concerned, my team and I visited the Almafuerte institute in the province of Buenos Aires and La Esperanza in the province of Córdoba.

Except for the absence of heating and restricted night access to toilets in La Esperanza, I found the conditions of detention to be generally acceptable. However, in both institutions, I observed an oppressive regime of confinement under which the inmates are constantly held in closed and locked spaces, with very limited access to outdoor activities. In La Esperanza, several inmates reported not being allowed access to school and complained about having to spend most of their time doing virtually nothing. 

I am particularly alarmed at the disciplinary punishment allegedly being used in La Esperanza, where several inmates reported to have been tied by their hands and feet to their beds, in complete isolation, sometimes for several consecutive days. Also in La Esperanza, I have received allegations of inter-inmate sexual abuse without appropriate intervention by the staff.

I herewith remind the authorities that, as far as juveniles are concerned, deprivation of liberty should be used as an absolute measure of last resort, and that any juvenile correctional system must make particularly strong efforts at protecting the physical and mental well-being and upholding the rights and best interests of the child.

I strongly urge the authorities to end excessive confinement in juvenile detention centres and to guarantee access to schools and opportunities of reintegration to adolescent inmates, in full compliance with the United Nations Rules for the Protection of Juveniles Deprived of their Liberty and the United Nations Standard Minimum Rules for the Administration of Juvenile Justice.

I further urge the authorities to systematically investigate and monitor the way disciplinary measures are being applied in juvenile institutions and to impose appropriate disciplinary and, when necessary, criminal sanctions against the staff responsible for violating, whether through acts or omissions, the physical and psychological integrity of the children and adolescents held in these institutions.

5. Psychiatric institutions

In the course of my visit, I have also visited a number of institutions accommodating patients with psychosocial disorders. In this context, I would like to emphasized that I had neither the means nor the expertise to appropriately assess the adequacy of institutionalization and/or of the medication prescribed to these patients, or to evaluate the reliability of statements made by them in the course of our direct interaction. I therefore restrict my observations to the physical conditions prevailing in the visited institutions.

The National Mental Health Act No. 26657 (2010), in force since 2013, is widely acknowledged to be an important step towards guaranteeing the rights of persons with mental or psychosocial disorders and towards improving their treatment. In practice, however, there are extreme discrepancies in the implementation of these norms. Thus, while the Moyano Hospital in the city of Buenos Aires appeared to offer overall adequate material accommodation, I was shocked by the situation of the patients institutionalized at the Dr. Alejandro Korn neuropsychiatric Hospital in the city of La Plata (also known as "Melchor Romero"). Particularly patients residing in the acute section of the hospital, both male and female, were subjected to degrading conditions incompatible with human dignity. The building accommodating these patients was found to be literally falling apart, sanitary installations were broken and toilets and bathroom were found to be filthy and flooded. To overcome the shortage of staff, some patients were reportedly forced to take excessive medication, including sleeping pills and no action was taken to keep the premises in an acceptable sanitary state. Left without proper care and attention, patients capable of doing so were changing the diapers of those with more severe disabilities so as to maintain a minimum level of personal hygiene. It is my considered view that the acute sections for both women and men are beyond repair, absolutely unfit for the accommodation of human beings and must be closed without delay and replaced with adequately staffed and equipped institutions where patients with psychosocial disabilities can live and be treated with human dignity in accordance with their specific needs.

While the physical conditions in the psychiatric hospital of the provincial prison of Cruz del Eje are generally acceptable, the prison staff does not appear to be properly trained in providing care for patients with specific needs, and allegedly tend to resort to physical means of constraint, such as tying patients to their beds, or the use of threats and beating, in order to keep them under control.

I urge the authorities to systematically investigate the conditions of detention and treatment of patients in psychiatric hospitals and to take all necessary measures to ensure compliance with their obligations under the Convention on the Rights of Persons with Disabilities. 

I this context, I welcome the de-institutionalization foreseen in national law by 2020 and strongly encourage the authorities to establish, without delay, the alternative community-based structures which will be necessary to that effect.

6. Conditions of detention

i. Overcrowding

Throughout Argentina, there seems to be a clear hardening of the criminal policy in response to popular concerns over violent crime and public security, prompting a sharp increase of incarceration levels and a dramatic deterioration of conditions of detention. As a consequence, the prison population throughout Argentina is reported to have approximately tripled in the past two decades, resulting in a situation of chronic overcrowding throughout the country and, in some provinces, prolonged detention at police stations unfit for that purpose. I note with particular concern that the population of female detainees is reported to have increased disproportionately in recent years, with more than 70% of them being detained due to increasingly repressive legislation and judicial practice relating to small scale narcotics offences. Additionally, a federal law has been passed aiming to severely curtail the progressive execution of sanctions, including possibilities of early release on parole, for a number of offences, with the resulting increase of the overall prison population expected to be as high as 40%. While nationwide official statistics suggest a current occupancy to capacity ratio of approximately 130%, the official capacity of detention places appears to be calculated on the basis of available beds rather than available space per inmate, which results in available surface areas as small as 1m2 (one square metre) or less per inmate, in clear contravention to universally applicable Standard Minimum Rules for the Treatment of Prisoners (Mandela Rules).

ii. Conditions of detention amounting to cruel, inhuman and degrading treatment

This brings me to the most difficult part of my observations. While the infrastructure and the conditions of detention we observed in the federal prisons of Ezeiza and Formosa may require certain improvements, I regret to report that, in many provincial police stations and penitentiaries, I encountered detention conditions which are totally incompatible with human dignity and may amount to torture and other cruel, inhuman or degrading treatment or punishment.

For example, in the Establecimiento Penitenciario Nº9 (Cordoba province) 12 triple-story beds are cramped into cells measuring 3x4 metres. Ten inmates are locked up in each cell for 16 hours per day, without any sanitary installations, without any artificial light, and without any activity or space to move. There are no tables or chairs, and inmates eat their meals in their beds. They urinate and defecate in plastic containers, except for two periods of four hours per day, when their cells are opened and they can access a bathroom and a narrow, neon-lit corridor of approximately 6-8m2, which is equipped with a TV set and connects four identical cells with a total of 40 inmates. Inmates are held in these conditions with absolutely no access to sunlight and open spaces for periods ranging from several weeks to more than 6 months, resulting in a general sense of deep distress and desperation.

In Provincial Police Stations (Comisarias) Nos. 1 and 5 (Buenos Aires Province), the Alcaldia de Varones and the Comisaria de Ibarreta in (Formosa Province) and in several pavilions of the prisons in Florencio Varela (Buenos Aires Province) and Cruz del Eje (Cordoba Province) numerous men and women sleep without mattress on the floor, cement, or the bare rack of metal beds. To the extent blankets and mattresses are available, they are severely torn, ragged, and physically disintegrating. Cells are infested with insects and/or rats, poorly ventilated and lit, with improvised electrical installations hanging from ceilings and walls, or have no artificial light at all, and often access to toilets is limited, particularly during the night. In other cells, water taps were blocked, forcing detainees to drink water from the same toilets they used to urinate and defecate. We encountered numerous men and women who reported to have been held in police custody for prolonged periods, ranging between several weeks and more than six months, often without having seen by a judge or a public defender and without any access to fresh air or sunlight whatsoever.

Many inmates complained about insufficient quantity and quality food, particularly in police custody, where the meals provided were clearly insufficient to maintain an adequate level of nutrition, thus forcing families to bring additional food during visiting hours. We received several allegations of corruption involving police officers “confiscating” food and other items brought by the families.

In virtually all facilities we visited, the number, presence time and detention-specific training of health professionals was clearly insufficient, as was the supply of medical equipment, pharmacy and dental care. There are no special programmes for detainees affected with long-term illnesses, including cancer and HIV, and medical staff were unaware of the The Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Istanbul Protocol”). Apart from the obvious lack of resources allocated to prison health services, detainees also reported a near complete disregard for their medical needs on the part of prison officials.

I must stress that the conditions of detention I have just described severely contravene international standards and are incompatible with human dignity. 

It is beyond any doubt that, in allowing this situation to arise, continue and further exacerbate despite repeated appeals on the part of civil society and international mechanisms, Argentina has become responsible for widespread and persistent violations of the convention against torture and other cruel, inhuman or degrading treatment or punishment. There can be no justification, whether economic, political, legal or otherwise, for any legislative, executive or judicial act or omission knowingly exposing human beings to such intolerable conditions.

I therefore feel compelled to protest in the strongest terms against these conditions and appeal to the Argentinian authorities of all levels and branches, as a matter of urgency, to commit the necessary resources to improve the physical conditions of detention, to apply alternative measures to detention and to take all other necessary measures to ensure that all persons deprived of their liberty be treated with the dignity due to all members of the human family and in conformity with international standards as reflected in the Mandela Rules. 

Most urgently, the judiciary must move to stop any unnecessary influx of inmates into the existing detention system, and facilitate the release of any prisoner whose detention is not imperatively required. 

Where necessary, the legislative branch must provide the legal basis allowing to alleviate the pressure on the detention system.

I also call on the executive branch to take decisive and effective action with a view to preventing and punishing any act of corruption, extortion or ill-treatment on the part of security or prison officials.

Conclusion

I found it difficult, in these brief and preliminary observations, to give justice to the open and frank dialogue held with numerous authorities on all levels, but also to the pain and suffering of countless inmates, indigenous leaders, human rights activists and victims who shared their stories of with me throughout the past two weeks. The people of Argentina have made great achievements in the past three decades and the country has come a long way since the dark period of the military dictatorship. However, I have the impression that part of the oppressive military architecture of the past has survived within the security and prison systems and, under the guise of public security policy, risks to lead the country back down a slippery slope towards a more divided society marked by increasing indifference, arbitrariness and abuse.

In the past three decades, Argentinian society has repeatedly proven to be capable of standing up against violence, torture and abuse. I appeal to the Argentinian people and authorities to live up to the historical achievements, and say “no” to all forms of torture, inhumanity, cruelty and humiliation - not only that of the past, but also to that of the present and, most importantly, to that of the future.