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Report in English 0 Contents Executive Summary ................................................................................................................................. 4 1. Practice and Patterns of Torture in 12 countries ................................................................................ 6 1.1 Torture in the context of uprisings and regime change ............................................................... 7 1.2 Torture and ill-treatment in armed conflict .................................................................................. 8 1.3 Torture and ill-treatment in criminal investigations ..................................................................... 9 1.4 Torture in context of counter-terrorism ....................................................................................... 9 1.5 Gender-based violence and failure to protect ............................................................................ 10 1.6 Torture and ill-treatment of persons belonging to marginalised groups ................................... 11 1.7 Conditions of detention .............................................................................................................. 13 2. Legal Framework ............................................................................................................................... 14 2.1 International law on the prohibition of torture .......................................................................... 14 2.2 Status of international treaties in domestic law ......................................................................... 15 2.3 Application of international law by domestic courts .................................................................. 16 2.4 Jurisdiction over torture committed abroad .............................................................................. 16 3. Prevention of Torture ....................................................................................................................... 18 3.1 Pre-trial detention and judicial control ....................................................................................... 18 3.2 Irregular administrative detention ............................................................................................. 21 3.3 Limited access to a lawyer .......................................................................................................... 22 3.4 Right to medical examination ..................................................................................................... 24 3.5 Monitoring bodies ....................................................................................................................... 24 3.6 Evidence obtained through torture ............................................................................................ 26 3.7 Prohibition of refoulement ......................................................................................................... 28 4. Accountability for torture ................................................................................................................. 31 4.1 Criminalisation of torture ........................................................................................................... 32 4.2 Investigation of torture in practice ............................................................................................. 34 Special Investigation Commissions ............................................................................................... 36 4.3 Procedural obstacles to accountability ....................................................................................... 37 Use of special or military courts for trying perpetrators of torture .............................................. 37 Amnesties for the crime of torture ................................................................................................ 38 Statutes of limitation as a barrier to prosecution ......................................................................... 39 Challenges in obtaining forensic evidence .................................................................................... 40 Lack of witness and victim protection and harassment of lawyers .............................................. 42 4.4 Findings ....................................................................................................................................... 44 1 5. Reparation for torture ...................................................................................................................... 46 5.1 Recognition of the right to reparation for torture ...................................................................... 46 5.2. Special Reparation Programmes ................................................................................................ 48 6. Conclusion ......................................................................................................................................... 51 7. Recommendations ............................................................................................................................ 52 2 Acknowledgements REDRESS is grateful to the Mizan Law Group for Human Rights for its collaboration in organising the Middle East-North Africa Regional Experts Meeting on the Law and Practice in Respect of Torture, held in Amman, Jordan, on 14-16 January 2013. This session was one of a series of regional meetings on the law and practice of tortur e forming part of the REDRESS initiative ‘Reparation for Torture: Global Sharing of Expertise,’ supported by the European Union. REDRESS would like to thank the participants of the Middle East-North Africa Regional Experts Meeting for their valuable contributions, which served as the basis for the present report. Participants came from countries across the region, including Algeria, Bahrain, Egypt, Iraq, Jordan, Lebanon, Libya, Morocco, Palestine, Syria, Tunisia and Yemen. We also thank the representatives from Mizan Law Group for their role in the meeting, in particular Eva Abu Halaweh, Executive Director, and Jihan Mirza, Development Officer, as well as international human rights lawyer Asma Khader who gave the keynote address; Dr Mohamed al Moussa, professor of international human rights law at Zaitooneh University, Jordan, and Therese Rytter, Head of International Legal Affairs at DIGNITY-Danish Institute Against Torture whose presentations contributed to the rich discussions that took place during the conference. Methodology Participants were invited to the Middle East-North Africa Regional Experts Meeting on Law and Practice in Respect of Torture on the basis of their expertise and experience in litigation and advocacy on torture related issues. The participants completed a questionnaire regarding the law and practice of torture in their jurisdiction and made presentations at the meeting covering national as well as thematic issues. The meeting provided an opportunity to exchange information and experiences on litigating torture cases and advocating legal and institutional reforms. This report builds on the presentations and discussions at the meeting, as well as the information shared by expert participants in their responses to the questionnaire that informed the content and structure of the meeting. It provides a review of laws, practices and patterns of torture, examining the availability and effectiveness of safeguards, accountability mechanisms and avenues to obtain reparation for torture in the following countries of the Middle East-North Africa region: Algeria, Bahrain, Egypt, Iraq, Jordan, Lebanon, Libya, Morocco, Palestine, Syria, Tunisia and Yemen. The Report also reflects both the systemic challenges and best practices identified by the participants in respect of key areas of concern. Throughout this report, unless otherwise indicated, ‘reportedly’ refers to contributions made by participants at the meeting. 3 Executive Summary Across the region, torture has been prevalent for decades, serving as a key tool for authoritarian regimes to repress dissent, instil fear and maintain their grip on power; the concomitant lack of accountability for perpetrators has entrenched a culture of impunity. The recent uprisings across the region have resulted in significant changes and challenges, many of which were still unfolding at the time of writing in June 2013. The situation is therefore characterised by a high degree of volatility and uncertainty, with some regimes resisting change, such as Bahrain, some countries in the midst of conflict, such as Syria, while others are undergoing uncertain transitions, such as Egypt, Iraq, Libya, Tunisia and Yemen. Some of the most common patterns seen in the region include torture by police and security forces as a means of extracting confessions, which is particularly prevalent in the context of suspected terrorism. This can be attributed in part to the fact that security legislation in many countries allows for extended pre-charge and pre-trial detention of suspects, which increases their vulnerability to torture. In addition, governmental responses to the uprisings have been characterised by excessive use of force against protesters by police, military and security forces, as well as armed thugs used by law enforcement. In many states where recent uprisings have occurred, hundreds and in some cases thousands of protesters were arrested and detained, in many cases without following proper arrest procedures and without charge. There are widespread and credible
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