Conclusions and recommendations of the Committee against Torture, Poland, U.N. Doc. A/55/44, paras. 82-95 (2000).
COMMITTEE AGAINST TORTURE
1-19 May 2000
CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES
UNDER ARTICLE 19 OF THE CONVENTION
Conclusions and recommendations of the Committee against Torture
82. The Committee considered the third periodic report of Poland (CAT/C/44/Add.5) at its 412th, 415th and 419th meetings, held on 2, 3 and 5 May 2000 (CAT/C/SR.412, 415 and 419) and adopted the following conclusions and recommendations.
83. The Committee notes with satisfaction that the third periodic report is comprehensive, informative and conforms with the general guidelines for the preparation of State party reports, with regard to both form and content.
84. The oral statement of the delegation of Poland and its explanations and clarifications and the discussion that followed complemented the written information provided.
2. Positive aspects
85. The Committee notes with appreciation the impressive and successful efforts made by the State party that have led to major transformation in the political, social, economic, legislative and institutional spheres in Poland.
86. The Committee notes in particular:
(a) The adoption of the new Constitution which entered into force on 17 October 1997 and which contains new elements for the defence of freedoms and the rights of citizens, stipulates the respect of international law binding on Poland and ensures the precedence of international agreements over domestic law in case of conflict;
(b) The introduction in the new Constitution of the norm that stipulates that "no one be subjected to torture or cruel, inhuman or degrading treatment or punishment", which is an important step towards achieving the requirements and recommendations of the Committee, namely that a definition of torture which fully covers all the elements in the definition contained in article 1 of the Convention be incorporated in domestic law;
(c) The abolition of the death penalty;
(d) The fact that no statute of limitation applies with respect to war crimes and crimes against humanity.
3. Principal subjects of concern
87. The Committee is concerned that the amendments to domestic legislation do not contain any provisions for the prosecution and punishment of those guilty of the crime of torture, as required by articles 1 and 4 of the Convention.
88. The Committee is also concerned that the new Penal Code does not introduce any substantial change regarding orders of superiors when they are invoked as justification of torture. According to existing legislation, criminal responsibility of the recipient of an order is based on his awareness of the criminal nature of the command.
89. The new Penal Code does not include the "danger of exposure to torture" as one of the grounds for the refusal of extradition as is required by article 3 of the Convention.
90. The Committee notes that, in spite of the efforts of the State party, some drastic acts of aggressive behaviour by police officers continue to occur, which has resulted in death in some instances.
91. The Committee is also concerned about the persistence in the army of the practice of the so-called "fala", whereby new recruits are subjected to abuse and humiliation.
92. Although the Committee notes that the new Polish Constitution recognizes international conventions ratified by Poland to be part of the Polish legal system, it also notes that in the Polish legal system there are no provisions for making charges relating to, nor penalties applicable to, the crime of torture. Therefore, the Committee recommends that the State party introduce such legislative changes as are necessary to identify torture as a specific crime and to enable prosecutions of torture, as defined in the Convention, and the application of appropriate penalties.
93. The Committee further recommends that the Penal Code be amended to ensure that orders of superiors cannot be invoked, in any circumstances, as justification of torture.
94. The State party should introduce an effective and reliable complaint system that will allow the victims of torture and other forms of cruel, inhuman or degrading treatment or punishment to file complaints.
95. Legislative and administrative measures should be introduced to safeguard against excessive use of force by the police, in particular in connection with the supervision of public meetings and to safeguard against the persistence of abusive measures associated with the practice of so-called "fala" in the army.