CONSIDERATION OF REPORTS
SUBMITTED BY STATES PARTIES UNDER ARTICLE 19 OF THE CONVENTION
periodic reports of States parties due in 1998
* The initial
report submitted by the Government of Mauritius is contained in document
CAT/C/24/Add.1; for its consideration by the Committee, see documents
CAT/C/SR.212, 213 and the Official Records of the General Assembly,
Fiftieth session, Supplement No. 44 (A/50/44, paras. 132-145).
I. INFORMATION OF A GENERAL NATURE
the presentation of its initial report by Mauritius, the death penalty
was abolished following the passing of the Abolition of Death Penalty
Act in December 1995. In the same year, section 16 of the Constitution
was amended to prohibit any discrimination by laws or public authorities
on the ground of sex. Further, national elections were held in December
1995 and a new Government, led by Prime Minister Dr. Navin Ramgoolam,
assumed office. The new Government has emphasized its commitment to
the respect and promotion of human rights. In that context, Government
has created a portfolio for human rights, for which the Attorney-General
and Minister of Justice is responsible.
2. In October
1996, Mauritius hosted the twentieth session of the African Commission
on Human and Peoples' Rights, which coincided with the tenth anniversary
of the African Charter on Human and Peoples' Rights and was an excellent
opportunity for Mauritius, as host country, to reaffirm its commitment
to the promotion and protection of human rights.
3. At the
request of the Government of the Republic of Mauritius, the High Commissioner/Centre
for Human Rights (HC/CHR) conducted a needs assessment mission to
the Republic of Mauritius from 27 November to 6 December 1996, funded
by the United Nations Voluntary Fund for Technical Cooperation in
the Field of Human Rights. Following the recommendations made by the
mission, the Government is introducing in the next parliamentary session
the Protection of Human Rights Bill. The Bill provides for the setting
up of a National Human Rights Commission with the following functions:
(a) To inquire,
of its own motion or on the basis of a communication from any individual
or any other person acting on his behalf, into allegations that anyone's
human rights have been or are likely to be violated by and act or
omission of any person, and recommend appropriate remedial measures;
(b) To visit
any prison or other places of detention under the control of the State
to study the living conditions of the inmates, and make recommendations
(c) To review
the safeguards provided by or under the Constitution or any other
enactment for the protection of human rights and recommend measures
for their effective implementation;
(d) To review
the factors or difficulties that inhibit the enjoyment of human rights
and recommend appropriate remedial measures;
(e) To spread
human rights literacy among various sectors of society and promote
awareness of the safeguards available for the protection of these
rights, through publications, the media, seminars or any other means;
(f) To encourage
the efforts of non-governmental organizations and institutions working
in the field of human rights;
(g) To resolve
complaints by a conciliatory procedure;
(h) To exercise
such other functions as the Commission may consider to be conducive
to the promotion and protection of human rights.
4. A training
programme for the police has been established in collaboration with
the Attorney-General's Office to sensitize the Police Department further
on international human rights standards and law enforcement. The programme
will also cover the United Nations Code of Conduct for Law Enforcement
Officials, the Basic Principles on the Use of Force and Firearms by
Law Enforcement Officials and the Standard Minimum Rules for the Treatment
5. The existing
Extradition Act of 1970 is now being amended to incorporate article
3 of the Convention.
International (Mauritius) is at present (April 1998) hosting a workshop
on the theme of human rights in Mauritius. Representatives of the
Police Department, prisons authorities, primary and secondary school
and trade unions are among the participants. Several prominent international
experts in the field of human rights addressed the participants. During
the workshop the representative of the Ministry of Education confirmed
that the Ministry intended to introduce human rights as a subject
in the school curriculum.
7. To mark
the fiftieth anniversary of the Universal Declaration of Human Rights,
the Government as well as non-governmental organizations are organizing
workshops and exhibitions and a campaign primarily aimed at sensitizing
students. A plaque inscribed with the principles of the Universal
Declaration will be unveiled on the newly developed site of the Waterfront
in Port Louis, the capital of Mauritius.
8. The present
report was communicated to the Indian Ocean Institute for Human Rights
and Democracy. The comments of the President of the Institute are
found at annex 1 (see list of annexes).
II. INFORMATION RELATING TO THE ARTICLES IN PART
OF THE CONVENTION
Articles 1, 2 and 4
9. Acts of
torture, as well as attempts at and acts of complicity in torture,
are generally prohibited under the Constitution and the Criminal Code,
although there is no specific offence of torture (as defined in article
1 of the Convention) in the laws. Acts of torture by which severe
mental anguish is intentionally inflicted on a person are not
offences under Mauritian criminal law. The aggrieved party in the
latter case has nevertheless the option of instituting a civil action
in damages to obtain appropriate compensation for interference with
his or her rights.
article 86 of the Criminal Code, a public officer or person appointed
by the Government or the police, acting in the discharge of his functions
or for the purpose of discharging such functions who, without lawful
reason, uses or causes to be used any violence towards any person
is, according to the nature and extent of the violence used, liable
to double the punishment which would have been incurred by any other
person guilty of the like crime or misdemeanour.
11. The forthcoming
establishment of the National Human Rights Commission (see para. 3
above) is seen as an important step in the development of the protection
of human rights. The Commission will be independent in that it will
not be under the control of any person or authority in the performance
of its duties. It will provide an individual with additional means
to seek redress if he or she is subjected to torture or runs the risk
of being extradited to a State where there are reasonable grounds
to believe that he or she would be subjected to torture. The power
conferred on the Commission to inquire into a case of violation of
human rights is without prejudice to the jurisdiction of the courts
or the power conferred on the Director of Public Prosecutions or Service
Commissions under the Constitution. Service Commissions deal, inter
alia, with disciplinary matters involving public officers.
12. The Commission
will also have the power to inquire into cases of police brutality
and report to the Director of Public Prosecutions. At present, such
cases are inquired into by an investigative unit forming part of the
police force. As pointed out in the initial report, those inquiries
are not perceived by some as being impartial.
13. As mentioned
at paragraph 5 above, the Extradition Act will be replaced by a new
Act which will, inter alia, incorporate article 3 of the Convention.
14. A Mauritian
court already has jurisdiction to try an offence committed within
the jurisdiction of Mauritius or on board a ship or aircraft registered
in Mauritius. The position of the reporting State in relation to article
5 has therefore remained unchanged.
a person is suspected of having committed, or is likely to have committed,
or intends to commit, a crime including physical acts and ill-treatment
that fall under the heading of "torture" in the Convention, that person
may be deprived of his liberty. The authorities must, before imposing
any restriction on that person's liberty, ensure strict adherence
to the provisions of the law which are applicable under the Constitution,
the Bail Act, the Criminal Procedure Act and the District and Intermediate
Courts (Criminal Jurisdiction) Act. The Extradition Act is applicable
if the person is likely to be extradited.
any action is triggered, the police has to have a reasonable suspicion
that the person has committed (or is likely to, or intends to commit)
a crime. Pursuant to article 11 of the Code of Criminal Procedure
a police officer may effect the arrest of a suspect where he is in
possession of a warrant issued by a magistrate authorizing him to
do so. In circumstances where a crime is being committed or attempted
to be committed, a private person or a police officer may arrest the
offender without a warrant.
upon arrest the suspect must be informed of his right to legal counsel
and of the nature of the criminal offence of which he is suspected.
He has the right to use the telephone to contact his relatives or
counsel. Furthermore, he must be informed of his right not to answer
any questions. The suspect must be given access to his counsel to
give instructions to the latter. Since December 1994, a Charter containing
rights to persons held in police custody has been distributed at police
station level to inform detainees of their rights.
18. In June
1997 the case of The State v. M.A. Coowar (annex 2) was referred
to the full bench of the Supreme Court to decide on the legal obligation
of the police under sections 3 and 5 (3) (b) of chapter II of the
Constitution (see annex 3) to inform an accused party who is in police
custody of his right to counsel. The Court held that the right of
a person in police custody to consult a legal representative of his
choice enshrined in section 5 (3) of the Constitution includes, or
is deemed to include, the right to be informed about that right. It
further held that the right to communicate with a legal adviser is
capable in some situations of being of little value if the person
is not informed of that right.
the arrest of a suspect, section 13 of the District and Intermediate
Court (Criminal Jurisdiction) Act requires the officer to bring the
party arrested to jail or before a magistrate, according to the import
of the warrant issued by the magistrate. The magistrate decides whether
the arrest was lawful or continued detention is necessary. The Bail
Act 1989 governs the detention and release of detainees and provides,
inter alia, that every detainee shall be brought before a magistrate
within a reasonable time of his arrest or detention, and that a detainee
shall not be entitled to be released on bail where:
(a) He has
broken any condition of bail;
(b) He has
not complied with any other condition upon which he has been released;
(c) He is
not likely to abide by the conditions of his bail, if released;
continued detention is necessary:
his own protection;
the protection of the public or any likely witness or any evidence;
his own welfare, if he is a child or a young person;
the reason that it would not be practicable to complete the police
inquiry if he is released;
(v) In view
of the seriousness of the offence and the heavy penalty provided by
view of his character and antecedents; or
view of the fact that he is a fugitive from justice.
20. The Supreme
Court has observed in the case of Sheriff v. District Magistrate
of Port Louis (1989) MR 260 that it is only "in exceptional circumstances
that the liberty of the subject can be subordinated to the greater
needs of society requiring the forfeiture of his freedom. ... Detention
is the ultimate weapon that the authorities should resort to when
everything else has failed."
21. In DPP
v. IOIB and Shanto (1989) MR 110, reference is made to the practice
of entering a provisional information when a suspect is arrested or
brought into custody, in order to bring the detention of the individual
under judicial supervision and control and to prevent administrative
detention. It will then be for the judicial authority to decide whether
the detainee should be released on bail or not.
22. The Supreme
Court has also made it clear, in Hossen v. District Magistrate
of Port Louis (1993) MR 9, that since the Constitution specifies
that a suspect must be released unless brought to trial within a reasonable
time, the Court may, irrespective of the Bail Act, release a detained
person if it can be shown that the authorities responsible for inquiring
into an offence are procrastinating.
the magistrate decides that there are satisfactory grounds to prolong
the continued detention of the suspect, the magistrate shall order
that the suspect be remanded to police custody and brought before
him after 10 days to review the detention.
10 of the Constitution (see annex 3) provides that where a person
is charged with a criminal offence, the case shall be afforded a fair
hearing within a reasonable time by an independent and impartial court
established by law.
25. The Criminal
Code, the Criminal Procedure Act and the District and Intermediate
Courts (Criminal Jurisdiction) Act contain provisions which enable
the Director of Public Prosecutions (DPP) to take measures to prosecute
cases of criminal offences which fall within the jurisdiction of the
courts in Mauritius. Cases contemplated under article 7 are therefore
submitted to the DPP for appropriate action. However, as already pointed
out, it is a sine qua non condition that the offence must take
place on Mauritian territory.
26. The notion
of universal jurisdiction as provided under article 5 of the Convention
is not applicable. Where an offence takes place outside Mauritian
territory the Extradition Act 1970 lays down the procedures to extradite
the offender. The relevant sections of the Extradition Act were dealt
with in the initial report.
27. The law
and practice of Mauritius are in conformity with paragraphs 2 and
3 of article 7.
28. As pointed
out in the initial report, the practice of providing assistance in
all matters of crime, including cases of torture, has long been seen
as an important objective. Assistance, including the supply of all
evidence at the disposal of the reporting State necessary for the
proceedings, is offered on an ad hoc basis unless regulated in a bilateral
29. The request
for legal assistance is normally acceded to if it is made on the basis
of reciprocity. More important, however, the requesting State must
recognize fundamental rights including the rights of due process.
30. On 24
August 1996 Mauritius signed the Protocol on combating illicit drug
trafficking in the Southern African Development Community (SADC) Region.
The Protocol was signed by all States members of SADC with a view
to reducing and eventually eliminating drug trafficking, money laundering,
corruption and illicit use and abuse of drugs through cooperation
among enforcement agencies and reduction of demand through coordinated
programmes in the region. Mauritius also ratified the Protocol last
31. A legal
workshop was organized in October 1997 to oversee the implementation
of the Protocol. Once the appropriate mechanism is established to
promote mutual legal assistance among member States, it is hoped that
the Protocol will be extended to cover all criminal activities affecting
32. The curriculum
at the Police Training School already includes:
interrogation and treatment of any individual subjected to arrest
of minimum force in the arrest of the individual;
rights of the individual under the Constitution of Mauritius;
principles and procedures relative to the interview and interrogation
of witnesses and detainees according to the Judges' Rules.
Standing Orders, instruction books and circulars relative to the conduct
of police officers have recently been updated. Police Standing Orders
form the basis of frequent lectures at change-of-duty parades and
during weekly and monthly instruction classes held by gazetted officers.
In addition, 134 police officers involved in the custody, interrogation
and treatment of persons received special training from the Advisor
to the Police Force in 1977 and 1998. Human rights will receive greater
attention during the training of police officers. It is felt that
awareness and understanding of human rights should exist at every
level of the police force. It is in that context that the Attorney-General's
Office is working more closely with the Police Training School to
achieve those objectives.
34. It is
expected that a police officer, after completing an initial training
course, will have sufficient knowledge of the guidelines laid down
for the treatment of arrested persons and the procedures in relation
to the questioning and recording of statements.
35. The police
force is considering a review of its recruitment policy by introducing
an evaluation scheme extended over a period of 15 days whereby recruits
on joining the force, would be required to undergo a field training
conducted by experienced police officers, assisted by psychologists,
who would help to identify negative qualities of recruits which are
likely to foster brutality and trigger irrational behaviour in moments
of stress. In future, potential candidates for the police force will
also have to undergo psychological tests to gauge their level of apprehension,
control of temper and aggressiveness.
36. The treatment
of detainees in the prisons of Mauritius is regulated by the provisions
of the Reform Institutions Act and the regulations made thereunder.
The relevant provisions are dealt with in the initial report.
37. As part
of their training, prison offices are expected to be fully acquainted
with the United Nations Minimum Rules for the Treatment of Prisoners.
The prison authorities regularly seek assistance from the Attorney-General's
Office to run courses on legislation governing prison administration.
The Trainee prisons officers follow a course run by the prisons and
correctional institutional department, which covers professional conduct
and the code of discipline, the treatment of the offender, human growth
and development as well as psychology.
38. The interrogation
of a suspect and recording of statements from him must be carried
out in strict compliance with the guidelines laid down in the Judges
Rules and Administrative Directions to the Police on interrogation
and the taking of statements (see annex 4). The interrogation must
be carried out as soon as possible to prevent the person arrested
from being exposed to unnecessary inconvenience. A suspect, by virtue
of section 10 of the Constitution, is innocent until proven guilty.
39. The Rules
provide that the interrogating officer is obliged to point out to
the detainee prior to questioning that he is not obliged to answer
any questions and to caution him that anything he said may be used
in evidence against him. The interrogating officer must refrain from
doing or saying anything that amounts to procuring a statement that
cannot be said to have been made voluntarily. This includes use of
force, inducement, mental or physical coercion and so on. A confession
obtained in those circumstances is not admissible in a court of law.
Counsel for defence would normally challenge the admissibility of
the statements and cross-examine the interrogator on the circumstances
in which he recorded the statement. The trial judge would subsequently
have to decide whether the recorded statement is admissible and, if
so, what weight to give it.
40. It is
worth mentioning that after completing inquiries into more serious
offences, the police have to submit the case file to the office of
the DPP. Where the DPP's office is not satisfied that the inquiry
has been conducted in compliance with the procedures laid down, it
may seek further clarifications from the inquiring officers to ascertain
the reliability of the evidence before advising prosecution.
41. If it
comes out that the statements recorded from an accused party have
been obtained by the use of force, the police officers concerned will
be suspended from the force and an inquiry will be instituted by a
unit of the police force.
42. If a
case of torture is suspected, the police will start an inquiry and
submit the results to the DPP. Where there is a possibility that the
impartiality of the police may be questioned, the DPP may require,
under section 64 of the District and Intermediate Courts (Criminal
Jurisdiction) Act, a magistrate to proceed to where he has reasonable
ground to believe that an offence has been committed. Furthermore,
under section 64 (2) of the Act, in all criminal cases the DPP may
also require from any magistrate or officer any further and additional
information, inspection or examination or such other legal matters
and proceedings as may be necessary.
death has occurred as a result of a suspected act of torture in prison
or in police custody, the DPP may require a magistrate to hold a judicial
inquiry into the cause of death, under section 111 of the District
and Intermediate Courts (Criminal Jurisdiction) Act.
section 13F of the Police Act a police officer who has reason to suspect
that a person has committed, or is about to commit, an offence which
will endanger public safety or public order, may arrest that person
and use such force as may be necessary. The force used must be reasonable
and moderate. Where the officer has used force against persons in
the exercise of his duties he must immediately report this use of
force to his superior who may institute an investigation.
figures in relation to reported cases of assault perpetrated by police
officers on detainees in police cells detention centres and the action
taken subsequently are as follows (1995-March 1998):
|Number of cases reported
|Number of cases reported
|Number of cases classified
|Number of cases in which
prosecution has been advised by the DPP
|Number of cases sub judice
|Number of cases in which
police officers were convicted
|Number of cases dismissed
by the court
|Number of cases in which disciplinary
action has been
taken against police officers
|Number of cases in which advice
has been tendered for prosecution of complainant
|Number of cases still under
|Number of cases pending advice
|Number of cases in which the
incriminated police officer was given a severe warning as advised
|Number of cases causing incapacity
for more than 20 days
exist in the Police Standing Orders which require high-ranking police
officers to visit and interview detainees to take note of any complaint
which they may have.
47. The Police
Information and Operations Room has a voice message system which is
operational on a 24-hour basis and which allows members of the public
to complain about the police or generally vent any grievance they
may have on the phone without having to call personally at police
48. In addition
to the normal channels of complaints through the police, a person
who alleges that he has been subjected to torture may seek redress
to the Supreme Court for redress under section 17 of the Constitution
(see initial report);
the Ombudsman under section 97 of the Constitution;
an administrative law remedy before the Supreme Court;
a private prosecution;
the National Human Rights Commission, once the Commission becomes
49. It must
be pointed out that the Ombudsman, like members of the judiciary,
is independent of the Government. Section 101 of the Constitution
states that, in the discharge of his functions, the Ombudsman shall
not be subject to the direction or control of any other person or
50. The Ombudsman
may institute an investigation in response to a request but also on
his own initiative. He may investigate cases of abuse of authority
by a government department, the police force or a member thereof and
the Mauritius Prisons Service amongst others. The Ombudsman may make
such recommendations as he thinks fit after concluding his investigation.
He shall send a copy of his report to the Prime Minister and to any
minister concerned. The Ombudsman is also required by law to make
an annual report to the President concerning the discharge of his
functions which shall be laid before the Assembly.
see observations made in relation to articles 10, 11, 12 and 13.
from the Indian Ocean Institute for Human Rights and Democracy.
State v. Coowar 1997.
II - Constitution of the Republic of Mauritius.
Rules and Administrative Directions to the Police.
annexes are available for consultation in the files of the Office
of the United Nations High Commissioner for Human rights.