CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE
19 OF THE CONVENTION
Second periodic reports of States parties due in 1992
* The initial report submitted by the Government of Senegal is contained
in document CAT/C/5/Add.19; for its consideration by the Committee,
see documents CAT/C/SR.44 and 45 and the Official Records of
the General Assembly, Forty-fifth session, Supplement No. 44
(A/45/44), paras. 376-405.
[27 March 1995]
I. INFORMATION ABOUT
THE GENERAL LEGAL FRAMEWORK FOR THE
OF THE CONVENTION
1. The Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment was adopted by the United Nations General Assembly on 10
December 1984. After signing it, the Republic of Senegal ratified
it on 26 August 1986. The Convention entered into force on 26 June
2. The Senegalese
Constitution does not expressly define torture. Nevertheless, inasmuch
as article 6 declares that the human being is sacred and that it is
the duty of the State to protect the human being, it implicitly condemns
the practice of torture in Senegal. Moreover, although torture is
not defined in the Constitution, it is referred to in article 288
of the Penal Code as an aggravating circumstance when it precedes
or causes the death of a person. In this case, the text lays down
that the perpetrator of such a crime may not plead any extenuating
circumstances and is liable to capital punishment. If the act of torture
does not cause the victim's death, the statutory sentence is life
106 et seq. of the Penal Code make it an offence for public servants
and other officials to use torture when carrying out the lawful arrest
or detention of persons and impose prison sentences and fines in this
59 of the Code of Criminal Procedure provides for disciplinary action
against and even the prosecution of members of the police force who
torture persons held in custody in the premises of their units.
5. The matter
of cruel, inhuman or degrading treatment has also received careful
consideration in Senegalese legislation. For example, a death sentence
must be carried out in the privacy of a detention centre. It may not
be advertised in the press and the executed criminal's body must be
returned to his family on request.
6. The Republic
of Senegal is a party to other international human rights instruments
which likewise prohibit torture and which include:
Covenant on Civil and Political Rights;
Covenant on Economic, Social and Cultural Rights;
Convention on the Elimination of All Forms of Racial Discrimination;
Convention on the Suppression and Punishment of the Crime of Apartheid;
The Convention on
the Elimination of All Forms of Discrimination against Women.
7. With regard
to the position of the Convention against Torture in the national
hierarchy of laws, reference must be made to article 79 of the Constitution,
which gives international instruments ratified by Senegal precedence
over internal law. Once an international instrument is ratified, it
therefore becomes an operative part of internal law and may be directly
cited before all national courts (of first instance, appeal and cassation).
8. In Senegal,
the authorities empowered to ascertain whether torture has occurred
or to receive complaints on this subject are primarily the judicial
authorities, particularly the Government Prosecutor, who, under articles
55 et seq. of the Code of Criminal Procedure, is instructed to supervise
arrangements for custody in police stations.
under article 12 of the said Code, it is the duty of the Government
Attorney at the Appeal Court to supervise the action of the judicial
police throughout the national territory.
administrative authorities, starting with the Minister of Justice,
who is the head of the Government Prosecutor's department, are responsible
for supervising the enforcement of criminal law in this regard.
11. In 1991,
an ombudsman was appointed to receive all complaints from members
of the public concerning injuries resulting from the action of Government
departments and the Executive in general.
cases of torture (to which we will refer below in this report) have
thus been brought to the attention of the authorities, which have
taken the appropriate action.
13. To this
end, a victim of torture may lodge a complaint with the Government
Prosecutor or the Government Attorney at the Appeal Court because
of the roles they play in the functioning of the judicial police at
the regional and national levels. A victim may:
in person before the investigating judge to lodge a complaint and
bring a criminal indemnity action. This automatically sets the public
right of action in motion, even if the Government Prosecutor's Office
does nothing or is opposed;
his complaint to the Minister of Justice in his capacity as head of
the Government Prosecutor's Office;
lastly, lodge a complaint with the ombudsman, who may request explanations
from the Minister of Justice as the person in charge of the administration
of criminal justice.
14. The Convention
against Torture applies at all times in Senegal, where there are no
major obstacles to its implementation. It is true that, in recent
years, the police have often been accused of torture during investigations.
Once these cases were brought to the attention of the competent authorities,
they formed the subject of judicial inquiries.
the ombudsman receives a complaint of this nature, he immediately
contacts the Minister of Justice in the latter's capacity as head
of the Government Prosecutor's Office and often gives him a deadline,
usually of two weeks, in which to reply.
16. The consideration
of the general legal framework for the application of this Convention
would be incomplete without reference to the reorganization of the
courts in May 1992, when the Supreme Court ceased to exist. This high
court, which was set up immediately after independence was proclaimed,
had two main functions. The first was to unify the positive law which
applied in Senegal at that time. During the colonial period, the colonial
authorities, faced with the resilient nature of Islamic customary
law, were forced to take account of it by codifying it and applying
it to the personal status of "natives", who could not obtain
French nationality. Its second function was related to the unification
of the court system, as the existence of two types of applicable law
had led to the creation of a category of courts responsible for applying
customary, traditional law.
when it first became independent, Senegal had two systems of courts
applying two types of law (modern and customary). Thirty years later,
the authorities decided to abolish the Supreme Court, as it had achieved
its aims, and to replace it with three new courts. The thinking behind
this decision was also that the position with regard to the country's
courts should be in keeping with the rule of law. This led to the
amendment of the Constitution so that new courts could be set up.
Constitutional Council, responsible for ensuring the constitutionality
of all legislation and of proceedings relating to presidential and
parliamentary elections, while supervision of the elections is a matter
for the Court of Appeal;
Council of State, responsible for ensuring the legality of administrative
acts and for remedies of illegality when an administrative act is
prejudicial to a citizen. It also audits the accounts of public authorities.
It is composed of two sections;
Court of Cassation, which constitutes the appeal court for any infringements
of civil, commercial, social and criminal law. It is composed of three
chambers and hears all appeals in these four areas.
18. The judicial
reform of May 1992 entered into force immediately and all these three
high courts are now functioning to the satisfaction of the public.
19. In order
to conclude this section on the judicial reform, it is necessary to
say something about the Judicial Service Commission, which was also
reorganized at the same time. It now consists of judges and members
of the Government Prosecutor's Department and, above all, a board
of three members of the State legal service who are elected by their
peers. Although it is chaired by the President of the Republic, the
Judicial Service Commission is the main organ guaranteeing the independence
of the judiciary and guiding the careers of all members of the State
mention must be made of the establishment in 1991 of the ombudsman's
department, which, in the space of three years, has been able to satisfy
the Senegalese people's need for assistance in its often difficult
relations with its Government, without recourse to legal proceedings,
which may be lengthy and expensive.
II. INFORMATION ABOUT THE SUBSTANTIVE PROVISIONS OF THE CONVENTION
21. The Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment has several characteristics which make it different from
other international instruments of the same kind. First, it requires
States to prohibit torture in their national legislation and, at the
same time, explicitly rules out the justification of such practices
on the grounds of due obedience based on an order from a superior
officer or of any exceptional circumstances. Secondly, it provides
for the prosecution and trial of torturers in all other States parties
to the Convention. Thirdly, it allows for the possibility of an international
investigation when it has been proved that officials of a State systematically
characteristics must be known to all law enforcement personnel before
and after the submission of the periodic report of a State party,
like ours, which ratified this Convention even before it entered into
force in order to demonstrate its commitment to the common ideal of
23. The first
article of the Convention defines torture as it is understood by the
international community. The definition given in the Convention must
be duly incorporated in the national legislation of each State party.
has not yet embodied this definition in its national legislation,
despite the promises made by its representative when the initial report
was submitted. Nevertheless, when the bill amending the Penal Code
was drawn up, this definition was included in the text, which has
not yet gone through the entire administrative and parliamentary adoption
25. In 1994,
the Minister of Justice set up a national law reform committee, one
of whose duties it was to bring our national legislation into line
with our international commitments, i.e. the human rights covenants
and conventions we have signed. The committee is at work on this task,
but has not yet submitted its conclusions for action.
the delay in incorporating this definition in our national legislation,
the latter does contain several provisions on torture. These are,
288 of the Penal Code, which makes torture an aggravating circumstance
when handing down a sentence for intentional homicide, which is punishable
by the death sentence or life imprisonment, depending on whether the
victim has died;
106 of the Code of Criminal Procedure relates to the torture by judicial
police officers of suspected criminals while they are in custody.
27. The author
of this report will not fail to remind the competent authorities that
we promised the Committee against Torture that we would introduce
the definition set forth in the Convention in our national legislation.
is implicitly prohibited in Senegalese law. Article 6 of the Constitution
states that the human being is sacred and that it is the duty of the
State to protect the human being. The above statement is justified
by the precautions taken with the detailed regulations governing the
Executive's handling of exceptional circumstances, which law enforcement
agencies may use as a pretext for engaging in acts of torture. These
exceptional circumstances include:
powers under article 47 of the Constitution
the powers which the Constitution gives the President of the Republic
to deal with situations which threaten the proper functioning of public
institutions. In this connection, the Constitution lays down several
conditions designed to ensure that these powers are not misused. First,
there must be a serious threat to the proper functioning of public
institutions, which must also be observed by Parliament, the speaker
of which has been informed by the Head of State. The National Assembly
must convene automatically, if it is not in session, to monitor the
legislative measures adopted by the President of the Republic and
subsequently to ratify them because they lapse if they are not submitted
to it within two weeks. The Assembly may not be dissolved during the
exercise of emergency powers. In the exceptional case where the National
Assembly is not in place, it falls to the Constitutional Council to
rule on the constitutionality of the measures. If acts of torture
are found to have been ordered as part of these measures, they are
denounced by Parliament or the high court.
of emergency and state of siege
In the event
of serious threats of disturbances of public order, for any reason,
the President of the Republic manages the country's institutions and
services by means of these measures. The law governing these two measures
contains extremely detailed precautions to ensure that the proclamation
of a state of emergency or state of siege may not be used as a pretext
to carry out acts of torture on members of the population. For example,
under Act No. 69-29 of 29 April 1969, a decree proclaiming either
of these states ceases to be valid after 12 days. Furthermore, the
National Assembly convenes automatically, if it is not in session,
to monitor the measures taken and the handling of these states of
exception by the Executive or to extend the duration of the decree
proclaiming them beyond the 12-day limit. A supervisory committee
is likewise set up to monitor the application of measures taken in
connection with a state of emergency and any person whose fundamental
rights have been infringed may refer a matter to it. A state of emergency
precludes a state of siege, i.e. the President of the Republic may
not proclaim both at the same time.
of persons and property
the proclamation of a state of emergency makes it possible to requisition
persons or their property in order to maintain public services, this
may not under any circumstances be used as a pretext for torturing
members of the population. The main aim is to requisition persons
whose activities are vital to the maintenance of public services.
The above-mentioned supervisory committee is also competent to decide
on any violations of rights before legal proceedings take place.
obedience and superior orders as pretexts for torture
agencies frequently invoke an order from a superior to justify the
cases of torture of which they are accused and, in doing so, they
cite article 315 of the Penal Code. This text refers to the justification
of due obedience or an order from a superior officer to relieve a
person of criminal responsibility. In this respect, the Senegalese
courts unanimously hold that no order from a superior officer can
justify the practice of torture or exonerate those guilty of such
acts. In 1987, seven police officers were therefore sentenced by the
Dakar court to imprisonment and fines for the offence of torture and
it rejected their plea that they had been obeying an order from a
superior officer. As far as due obedience is concerned, there are
no legal provisions in Senegal which authorize the practice of torture.
29. No State
party to the Convention may return or expel a person to a place where
there are reasonable grounds for believing that he would be in danger
of being tortured. In this respect, Senegalese legislation (Act No.
71-10 of 25 January 1971 on conditions for the admission and temporary
residence of foreigners) places nationals and foreigners holding a
lawful residence permit on an equal footing in respect of freedom
of movement and the choice of a place of residence throughout the
national territory, subject to the requirements of public order.
No. 71-860 of 28 July 1971, adopted pursuant to the above-mentioned
Act, contains detailed regulations on the procedure for expelling
a foreigner. While the procedure is a matter for the Minister of the
Interior, who acts in this case on the basis of an order issued on
the grounds of the requirements of public order or national security,
an appeal may be lodged to have this order set aside and expulsion
or return are suspended for the duration of the proceedings.
31. A foreigner
who is expelled is protected from any threat of torture by being able
to choose his country of destination.
receive special protection under Senegalese law. First, they are granted
refugee status by a decision of a committee chaired by a senior judge.
Act No. 68-27 of 24 July 1968 on refugee status gives refugees the
same economic and social rights as nationals, once they have been
granted such status. A refugee may be expelled from Senegal only for
urgent reasons of national security and after the above-mentioned
committee has expressed its opinion. An appeal may be lodged against
the decision of this body on the grounds that it has acted ultra
vires. Furthermore, under this Act, the deadline for lodging an
appeal and the appeal itself have a suspensive effect. Similarly,
whenever expulsion is to be carried out, the law allows a refugee
a reasonable length of time to try to obtain admission to another
33. The same
concern to ensure that persons admitted to the national territory
are protected from torture exists in the text governing extradition
to Senegal and in the (bilateral and multilateral) international instruments
on judicial cooperation between our country and friendly States. All
these documents prohibit extradition for political or politically
motivated offences (Act No. 71-77 of 28 December 1977 on extradition).
Ruling out extradition for political offences likewise offers protection
against torture to persons wanted by their States for offences which
come under ordinary law, but involve an element of political revenge.
has concluded bilateral and multilateral agreements on legal cooperation
with some 20 States. We note, for example, that article 3 of the Convention
is linked to the contents of articles 12 and 13 of the International
Covenant on Civil and Political Rights, article 5 of the International
Convention on the Elimination of All Forms of Racial Discrimination
and article 15 of the Convention on the Elimination of All Forms of
Discrimination against Women.
35. In Senegal,
offences are divided into:
punishable by the death penalty or life or long-term imprisonment;
offences punishable by 5 to 10 years' imprisonment and a fine; and
offences punishable by one month to five years' imprisonment.
36. In Senegalese
law, torture is not a specific offence, but the references to it in
the Penal Code place it:
(a) In the
category of a crime punishable as such (art. 288);
(b) In the
category of a special offence (arts. 106 to 113 and 334),
by 5 to 10 years' imprisonment.
of the police force or gendarmerie who have carried out torture which
has been brought to the attention of the competent judicial authorities
by means of a complaint are automatically prosecuted. The list of
cases is very long and can be supplied to the Committee in due course.
of the police force or gendarmerie who have engaged in torture are
also brought before a disciplinary board in accordance with the provisions
of the statutory texts applicable to them. In this connection, the
Government of Senegal has instituted a monthly meeting between the
Ministers heading the Departments of Justice, the Interior and the
Armed Forces (Gendarmerie). During these meetings, all cases of judicial
and disciplinary proceedings against members of the forces under the
authority of these ministers are considered one by one and a decision
is always taken to impose either a judicial or a disciplinary penalty.
These meetings are greatly appreciated by the authorities, as they
make it possible to monitor the activities of the police and gendarmerie
in their relations with citizens in general.
39. The territorial
jurisdiction of Senegalese criminal courts is strictly regulated by
the Code of Criminal Procedure. For example, under article 664 of
the Code, a Senegalese criminal court may hear all cases involving
serious offences committed abroad, provided that:
offence is punishable in Senegal;
offender has not been tried and sentenced abroad;
offender has not served his full sentence or been pardoned or amnestied
courts apply internal law to lesser offences, provided that they are
classified in the same way in Senegal. Under article 666 of the Code
of Criminal Procedure, when the offence has been committed abroad,
the victim must file a complaint or the offence must be officially
reported by the authorities of the State in question. In the latter
case, proceedings may be instituted only at the request and at the
discretion of the Government Prosecutor. Under article 664 of the
Code of Criminal Procedure, offences against State security or against
mankind automatically come within the jurisdiction of Senegalese criminal
of the police force and gendarmerie who are guilty of acts of torture
are tried by regional correctional courts. Officers and senior officers
of the armed forces are tried by a special chamber of the Regional
Court of Dakar composed of professional judges and officers of the
same rank as that of the offender. This court hears the case as court
of first and last instance and the convicted person has no remedy
42. The legal
provisions described above do not in any way hinder the prosecution
of torture offences committed in Senegal or abroad and are therefore
in keeping with the Convention against Torture.
43. The aim
of the Convention is to ensure that a person who has committed torture
and is present in the territory of a State party is arrested, so that
he may answer for the acts of which he is accused. However, this measure
must not be used as an opportunity to torture the accused person,
who must benefit from all guarantees of due process in accordance
with the general principles of human rights.
44. In this
respect, Senegalese law is beyond reproach at the procedural level
because, when a person who has committed an offence abroad is present
in its territory, he can be arrested only at the request of a foreign
State. This State must justify its request by means of an international
arrest warrant stating the crimes of which the person is accused and
containing the full version of the applicable texts, as well as the
arrest warrant, with a view to possible extradition. This international
warrant is given to a police officer who arrests the fugitive and
draws up a report establishing his identify.
45. The police
officer presents the fugitive and the police report to the Government
Prosecutor, who questions the suspect about his identity to ascertain
that the warrant really applies to him. He orders the fugitive's imprisonment,
pending extradition, at the nearest detention centre. He notifies
the person's nearest consulate or embassy and informs it that it may
contact its national.
46. The Government
Prosecutor forwards the file through official channels to the Minister
of Justice, so that it may be referred to the Indictments Chamber
for an opinion on extradition. The rights of the defence are fully
guaranteed throughout this procedure, as the fugitive may be counselled
by a lawyer. If this court hands down a favourable decision, the Minister
of Justice then draws up a draft order authorizing extradition and
submits it for signature to the Head of State. The order places the
fugitive at the disposal of the requesting State and indicates that
it has one month in which to transfer him. Once this deadline has
expired, the fugitive is automatically released and cannot be arrested
again for the same offences.
extradition is refused and, on the basis of the evidence, the fugitive
is again placed at the disposal of the Government Prosecutor's department,
it investigates the offences of which he is accused and, in necessary,
institutes proceedings against him in accordance with the rules of
48. If a
person who has engaged in torture abroad is not extradited, he is
prosecuted following a preliminary investigation conducted by a judicial
police officer. On the basis of the police report on the offences
in question, the Government Prosecutor institutes judicial proceedings,
either through an application to the investigating judge to open an
investigation and issue a committal warrant or by deciding to bring
the accused person directly before the court dealing with flagrante
delicto cases, when the facts do not require any particular investigation.
In this case, the committal warrant is issued by the Government Prosecutor
49. In all
cases, the accused benefits from all the safeguards associated with
the rights of the defence (right to assistance by legal counsel, to
apply for bail, to produce defence witnesses, to ensure that they
are heard, to be tried by an impartial court within a reasonable period
of time and to all possible ordinary or special remedies available
in Senegal) (application for judicial review).
50. The extradition
procedure has just been described in the above section on article
6. It should nevertheless be pointed out that Senegal has two types
of extradition procedure, one conventional and the other, non-conventional
or ordinary. The first is based on bilateral and multilateral judicial
cooperation conventions with other African States (22 in all), while
the second, ordinary procedure is based on Act No. 71-77 of 28 December
1971 on extradition and applies to all requests for extradition from
States with which Senegal does not have a judicial cooperation convention.
51. The conditions
for extradition are identical under both procedures:
offences in question must be defined and carry criminal or correctional
penalties of at least two years' imprisonment;
offences must be punishable under Senegalese law;
offences must not be political or politically motivated.
52. It goes
without saying that torture, as defined above, certainly falls into
the categories of offence providing a legal basis for extradition
from Senegal to a foreign country.
is one of the few countries on the African continent which affords
a great measure of judicial assistance, especially in terms of prosecution.
For example, with regard to law enforcement services, Senegal is a
member of the International Criminal Police Organization (INTERPOL)
and, in this connection, maintains a wide network of contacts with
all countries in the world in the field of exchanges of information,
evidence in criminal proceedings and the arrest of offenders of all
judicial assistance on the basis of conventions takes the form of:
requests for judicial assistance from other courts;
of information about the sentences handed down against foreign nationals
with a view to inclusion in the central police record;
for the extradition of offenders;
for authority to enforce sentences delivered abroad;
of information about the civil status of persons being prosecuted;
for the enforcement of sentences.
judicial assistance is provided on the basis of judicial conventions,
but it may be given even if no such conventions exist (e.g. judicial
cooperation with Italy or Germany).
55. In this
respect, we take account of the provisions of article IV, paragraph
1, of the International Convention on the Suppression and Punishment
of the Crime of Apartheid and of article 4 of the International Convention
on the Elimination of All Forms of Racial Discrimination, which have
been ratified by Senegal and which deal with this question of mutual
56. Ten years
ago, the Senegalese authorities decided that, as torture constitutes
a serious violation of human rights, law enforcement personnel must
be taught in their training programmes that it is prohibited in the
procedures of which they are in charge. The institutions in question
Police Training College;
Training College for the Gendarmerie;
Training College for Customs Officers;
Training College for Civil Servants and Judges; and
Training College for Health and Social Workers.
of these colleges have recently been widened to include human rights
in general (personal freedom, fundamental freedoms and protection
of fundamental human rights).
57. The prohibition
on torture is covered by official instructions issued by the various
higher administrative authorities to which these law enforcement agencies
report. The instructions also provide for disciplinary measures against
persons who engage in torture.
Senegalese legislation, the methods of investigations conducted by
law enforcement agencies during police custody and detention before
or after trial are kept under constant, systematic review.
custody is strictly regulated by articles 55 et seq. of the Code of
Criminal Procedure, which lay down that members of the judicial police
force have a duty, inter alia, to:
the person concerned of any measure taken against him;
the person of the reasons for this measure;
inform the Government Prosecutor of the time when the measure began;
out interrogations and record in the police report the times of interrogation
and rest periods, together with any incidents which might have occurred;
the detainees signature of either the police report or a statement
that he has withheld signature;
the Government Prosecutor to authorize an extension of custody after
the first 48 hours; the authorization must be express and bear the
signature and seal of the law officer;
(g) If a
request is made for an extension of custody, notify the person concerned
beforehand and inform him or his right to be examined by a doctor
and, if he so wishes, arrange for an examination to be carried out;
(h) At the
end of the inquiry, sign the police report and obtain the signature
of the person concerned or record the latter's refusal to sign;
the person concerned before the Government Prosecutor, who must be
informed of any incidents or difficulties during this transfer.
59 makes provision for disciplinary measures or penalties if the judicial
police officer misuses his authority, i.e. carries out torture.
detention is ordered by the investigating judge, who is regarded as
the most powerful person in the country, but whose powers are considerably
restricted in Senegal by the provisions of the Code of Criminal Procedure.
For example, if the investigating judge summons a person being prosecuted
to appear before him, he must question that person immediately. This
first hearing may not be postponed.
the investigating judge has issued a warrant to arrest a person and
bring him before the court, the police must bring the suspect before
the investigating judge immediately and he must be examined forthwith.
Failing this, the suspect is taken to the nearest remand prison, where
he may not be held for more than 24 hours, after which, the governor
of this prison must bring the person before the Government Prosecutor
who requires the investigating judge to hold a hearing. If the investigating
judge is unable to do so, the presiding judge of the court or another
judge appointed by him must conduct the hearing, or the arrested person
must be immediately released (art. 116).
63. The detention
of a person for more than 24 hours under a warrant to arrest and bring
him before the court is regarded as arbitrary and the officials or
judges responsible come under the provisions of article 110 of the
Penal Code (art. 117 of the Code of Criminal Procedure).
the investigating judge has issued an arrest warrant, the person concerned
must be heard within 48 hours of his arrest; otherwise the above-mentioned
provisions concerning his immediate release apply.
65. If the
arrest takes place outside the area of jurisdiction of the investigating
judge who has issued the warrant, the suspect must be heard by the
Government Prosecutor, who must inform the judge who issued the warrant
and request the detainee's transfer (art. 183 of the Code of Criminal
66. If the
offence carries a prison sentence of two years or more, the investigating
judge may not issue the committal warrant, which forms the basis of
pre-trial detention, until he has held the first hearing. In this
case, if the accused is lawfully domiciled in Senegal, he cannot be
held for more than five days after his first appearance in court.
Persons charged with an offence carrying the above penalties and lawfully
domiciled in the area of jurisdiction of the court to which the case
has been referred may not be held in detention (art. 127 of the Code
of Criminal Procedure).
these measures do not apply to persons accused of serious offences
or crimes or to repeat offenders. Nevertheless, save in cases where
pre-trial detention is compulsory (crimes or the misappropriation
of public funds), the committal warrant issued by an investigating
judge is valid for only six months, after which time it must be renewed
by a reasoned order, against which an appeal may be lodged with the
Indictments Chamber (art. 127 bis of the Code of Criminal Procedure).
68. In order
to restrict the misuse of committal warrants by investigating judges,
the law enables them to place the accused under court supervision
on conditions which they may establish (art. 127 ter of the
Code of Criminal Procedure).
69. At all
events, an appeal may be lodged with the Indictments Chamber against
any orders by the investigating judge which restrict the rights of
70. The enforcement
of a sentence handed down by a criminal court is a matter for the
Government Prosecutor's Office, which sends the prison governor an
extract of the record of the court hearing, which the governor includes
in his records.
71. The Government
Prosecutor's Office is responsible for the judicial supervision of
the enforcement of a prison sentence and the Regional or Departmental
Committee oversees the administrative aspects. This committee is chaired
by the governor of the region or prefect of the department, depending
on the location of the prison. It meets every three months to supervise
all aspects of detention in situ (penalty, health, hygiene,
72. The provisions
of article 11 are echoed in other conventions ratified by Senegal,
especially the Convention on the Elimination of All Forms of Discrimination
against Women (art. 5), the International Convention on the Suppression
and Punishment of the Crime of Apartheid (art. IV (a)), and the International
Convention on the Elimination of All Forms of Racial Discrimination
73. The implementation
of this article of the Convention encounters serious obstacles in
Senegal and this has led to much debate between the authorities of
the country, on the one hand, and the United Nations human rights
monitoring bodies and some non-governmental organizations, on the
other. In order to have a better idea of the problem, this report
must clearly describe the position under international and internal
law and the facts at issue.
both international and Senegalese internal law are applicable.
12 of the Convention against Torture provides that "Each State
Party shall ensure that its competent authorities proceed to a prompt
and impartial investigation, wherever there is reasonable ground to
believe that an act of torture has been committed in any territory
under its jurisdiction".
79 of the Constitution stipulates that "Treaties or agreements
duly ratified or approved shall, upon their publication, prevail over
the laws, subject to each treaty or agreement being implemented by
the other party".
article 32 of the Code of Criminal Procedure, "The Government
Prosecutor shall receive complaints and reports of offences and shall
determine what action is to be taken on them. When he decides to dismiss
a complaint, he must inform the complainant of his decision, which
is purely administrative, and indicate that it will be up to him to
exercise the public right of action, at his own risk, by bringing
a criminal indemnity action before the investigating judge".
article 2 of the Code, "A criminal indemnity action for loss
or injury caused by any offence may be brought by any persons who
have personally suffered loss or injury caused directly by the offence".
It stipulates that "the public right of action may neither be
stopped nor stayed by the victim's abandonment of a criminal indemnity
action, except in one of the cases in which the public right of action
may be extinguished, as provided for in article 6, paragraph 3, of
3 of the Code states that a criminal indemnity action may be brought
at the same time as the public right of action and before the same
court. "This action shall be admissible for all types of loss
or injury, both material and physical or mental, resulting from the
offences forming the subject of the proceedings". "The injured
party or party bringing the criminal indemnity action may institute
proceedings before a criminal court to obtain compensation for loss
or injury resulting from the offence forming the subject of the proceedings
or for any other loss or injury resulting directly from the fault
of the offender".
to article 4 of the Code, "The criminal indemnity action may
also be brought separately from the public right of action. Nevertheless,
a decision on an action brought before a civil court shall be deferred
until a final judgement has been handed down on the public right of
action when it has been exercised by the prosecution".
76 of the Code lays down that "Any person who, in accordance
with this text, claims to have been injured by a crime or an offence
may lodge a complaint with the investigating judge and bring a criminal
indemnity action either by appearing in person, by being represented
by counsel or by letter. The claimant shall specify at that time,
or at a later time, the amount of compensation being requested for
the loss or injury suffered".
article 78 of the Code, a criminal indemnity action may be brought
at any time during preliminary investigations.
laws also exist: the Act of 4 June 1988, the Act of 10 July 1991 and
the Act of 8 July 1993. These legal texts were adopted by the Senegalese
legislative authorities between 1988 and 1993 in response to the growing
instability in the Casamance region, in the south of the country,
after December 1982. Their aim was to enable the authorities to restore
peace throughout the country whenever the opportunity arose and to
repair the national social fabric, which had been damaged by events
in this region.
article 8 of these texts, all offences and all principal, related,
secondary or supplementary judgements in criminal or correctional
cases were amnestied under the first articles. They were to be expunged
forever from the police record of the persons concerned. Moreover,
these texts prohibited any public servant or other official from referring
to these offences or to the judgements relating to them under any
85. As far
as the facts at issue are concerned, it will be remembered that the
1980s were a time of serious instability in the Casamance region in
the south of Senegal and that this resulted in the intervention of
the armed forces to restore and maintain order. This conflict between
the central Government and the separatist movement in the region (MFDC)
took the form of armed confrontations leading to deaths and injuries
on both sides.
86. One of
these clashes, at Kaguitt on 1 September 1992 was particularly deadly,
as it occurred the day after the agreement was signed between the
Senegalese Government and the separatist movement. The latter broke
its promises by suddenly taking up arms again. The security forces
arrested many persons who were brought before the courts.
87. The 1993
agreement led to the release of all persons detained in connection
with this event, even before trial. However, some Senegalese and international
non-governmental organizations took up the Kaguitt file by lodging
a complaint with the African Commission on Human and Peoples' Rights
in Banjul and with the monitoring bodies of the Commission on Human
Rights in Geneva. These complaints contained a list of the names of
persons who had allegedly disappeared or been executed extrajudicially
during the September 1992 events.
88. The Senegalese
Government was questioned by both bodies and asked to conduct investigations
in accordance with the provisions of article 12 of this Convention
and to try and punish the guilty parties.
89. The Senegalese
authorities pointed out that the amnesty laws had erased the memory
of this tragic episode in Senegal and that, in their opinion, further
reference to these events would jeopardize the peace which had already
been established and even the stability of the country.
tragic event that occurred in 1993 was the assassination of the Vice-Chairman
of the Constitutional Council of Senegal on 15 May. Several persons
were implicated in this case and were questioned by officers of the
national gendarmerie (Dakar squad). Some of these suspects were brought
to trial and charged with murder or complicity in the crime.
91. The above-mentioned
non-governmental organizations announced that some suspects had been
tortured while they were in the custody of the gendarmerie. They produced
press photographs to back up their allegations and demanded that the
authorities should conduct investigations into these cases of torture,
in the absence of complaints by the victims, who are alive and living
in Senegal. Action similar to that of the non-governmental organizations
was taken by the international human rights bodies.
92. In the
meantime, two of the victims, Mr. Mody Sy and Miss Ramata Gueye, acting
through their lawyers, lodged a complaint in due and proper form with
the Dakar Government Prosecutor, who immediately conducted an investigation,
which is now in progress. The Government Prosecutor was unable to
act on any of the other reported cases, as none of the victims filed
93. An event
which occurred on 16 February 1994 led to the violent death of six
police officers and some private individuals. Organizers of the march,
which had led to riots, were arrested. While they were being held
in custody in the premises of the Criminal Investigation Department,
one of these persons, Lamine Samb, died. This gave rise to accusations
from the aforementioned humanitarian organizations that Mr. Samb's
death had been caused by torture carried out by the investigators
and they demanded an investigation into this case. A complaint lodged
by the dead person's family was followed by the opening of an investigation
by the Dakar Government Prosecutor. This investigation, which is being
conducted by the investigating judge, is likewise still in progress.
these events in February 1994, opposition members of Parliament were
arrested inflagrante delicto and brought before the courts
on the grounds of complicity. Their cases also attracted the attention
of the monitoring bodies in Geneva, but they were discharged and their
cases were dropped. This at least shows that the Senegalese courts
are independent and impartial.
95. The various
events described above have prompted much discussion between the Senegalese
authorities, on the one hand, and humanitarian organizations and the
human rights monitoring bodies, on the other.
regard to the presumed disappearances and extrajudicial executions
in connection with the events in Casamance in general, the human rights
monitoring bodies are demanding that impartial investigations should
be conducted in accordance with article 12 of the Convention to identify
the persons responsible, who would then be tried and punished. The
Senegalese authorities have pointed out, in this connection, that
the amnesty laws no longer permit such investigations, which would
be likely to jeopardize the newly restored peace, national cohesion
and the stability of public institutions.
97. The Senegalese
authorities have received the reply that article 79 of their own Constitution
gives the Convention precedence over the internal law of the State
party to the international instrument. As the Convention is a multilateral
international instrument reciprocally applied by several States parties,
this situation is becoming a permanent problem.
98. The human
rights monitoring bodies are also demanding that the Dakar Government
Prosecutor should prosecute the persons responsible for the cases
of torture committed during the investigations into the case of Babacar
Seye and the events of 16 February 1994, in accordance with article
12 of the Convention. The Dakar Government Prosecutor is relying on
the very clearly worded provisions of the Code of Criminal Procedure
which define the rules for his action in criminal cases and the rules
under which the victim may bring a criminal indemnity action.
99. He holds
that, if the victims do not submit complaints to him because they
do not intend to join their action with that of the prosecution, they
are free to take separate action by bringing a criminal indemnity
action before the investigating judge. If no complaint is filed, he
does not institute proceedings. The human rights monitoring bodies
are also referring to the contents of article 79 of the Constitution
in requesting the Government Prosecutor to take the appropriate action.
cases are thus becoming a dispute between the various parties concerned
and the Senegalese authorities, i.e. a difference of opinion between
those in favour of international law and those in favour of internal
law as the basis of the peace, stability and, above all, national
cohesion so dear to the Senegalese people and authorities.
victims of offences in general and of torture in particular are entitled
to refer the matter to the courts in Senegal and they have several
types of procedure at their disposal for doing so. The first is a
complaint, which they may lodge with any judicial police officer having
jurisdiction in the area, thus already suing for damages by bringing
a criminal indemnity action (art. 16, para. 2 of the Code of Criminal
Procedure). A complaint may also be lodged with the Government Prosecutor,
who will order an investigation by the judicial police before instituting
proceedings (art. 32 of the Code of Criminal Procedure). Likewise,
a complaint, accompanied by a criminal indemnity action, may be filed
with the investigating judge, who automatically institutes proceedings
on behalf of the victim. Lastly, the accused may be summoned directly
before a court, where the victim may directly produce the evidence
in his possession and obtain a ruling.
witness, who is under oath, tells the court what he has seen or heard
in connection with an offence or a case. He must tell the truth, the
whole truth and nothing but the truth; otherwise he is liable to a
penalty for perjury. The Penal Code nevertheless provides him with
effective protection against any intimidation or ill-treatment linked
to his testimony on behalf of the parties to the proceedings.
is a long list of cases in which victims of torture in police or gendarmerie
stations have filed complaints and won their cases in Senegalese courts.
must be made to the provisions of article 2 of the Code of Criminal
Procedure, under which anyone who has personally suffered loss or
injury caused directly by any offence may bring a criminal indemnity
action. Under article 3 of the Code, compensation may be claimed for
all types of loss or injury, both material and physical or mental,
resulting from the offences forming the subject of the proceedings.
The text also states that the injured party may institute proceedings
before a criminal court to claim compensation not only for loss or
injury resulting from the offence forming the subject of the proceedings,
but also for any other loss or injury resulting directly from the
fault of the offender. It must be added that, if the loss or injury
is the result of an act of a public servant or official, article 145
of the Code of Obligations of Public Servants stipulates that the
State will be liable for compensation.
combination of all these legislative provisions constitutes an absolute
guarantee that any person who has been the victim of torture will
be able to exercise his right to fair compensation under Senegalese
law. It goes without saying that, if the after-effects of injury are
such as to require the functional rehabilitation of a victim's limb,
the victim will be entitled to compensation for this particular form
of injury on the same conditions.
in criminal proceedings in which the guilty party is ordered to pay
damages may be executed by imprisonment, the duration of which is
determined by the trial court.
awarded in criminal indemnity actions for loss or injury resulting
from torture can take the form of execution against real property,
if a mortgage or charge has been registered as a means of execution
by the investigating judge or the court in accordance with articles
87 bis and 342 bis of the Code of Criminal Procedure.
Garnishment is also a means of executing a judgement against a defendant
in a criminal indemnity action.
108. In criminal
proceedings, evidence for the prosecution comes from the Government
Prosecutor and evidence for the defence is supplied by the defendant
or accused. Nevertheless, when evidence is extorted by violence, it
is of no value in court proceedings in Senegal. For example, courts
of first instance or courts of appeal are wary of confessions, which
are always a suspect form of evidence because they are very often
obtained through physical or mental violence, i.e. by torture.
article 57, paragraph 2, of the Code of Criminal Procedure states
that, if a person in custody refuses to sign the deposition or has
signed it as a result of threats by the investigators, the deposition
is null and void.
article of the Convention is linked to articles of other conventions
ratified by Senegal, i.e. articles 14, 15 and 16 of the International
Covenant on Civil and Political Rights, article 5 (a) of the International
Convention on the Elimination of All Forms of Racial Discrimination
and article 15, paragraphs 2 and 3, of the Convention on the Elimination
of All Forms of Discrimination against Women.
111. It is
sufficient here to refer to articles 106 et seq. of the Penal Code
relating to acts infringing the freedom or safety of a person which
are committed by officials and members of the public or legal service
and which constitute offences punishable by imprisonment and fines,
as well as by civic dishonour if the trial court finds that the offender
has committed a crime in the exercise of his functions.
must also be made of article 59 of the Code of Criminal Procedure,
which relates to acts of torture that are carried out by members of
the judicial police force on persons held in custody and may lead
to disciplinary action against and the prosecution of the offenders.
Decree No. 66-1081 of 31 December 1966 on the prison regime in Senegal
prohibits prison warders from carrying out acts of torture on prisoners
under their authority.
article of the Convention is also linked to articles 6, 7 and 8 of
the International Covenant on Civil and Political Rights and article
6 of the Convention on the Elimination of All Forms of Discrimination
has made the declaration referred to in article 22 that it recognizes
at all times the competence of the Committee against Torture to receive
and consider communications from or on behalf of individuals subject
to its jurisdiction who claim to be victims of a violation by a State
party of the provisions of the Convention. Our country is also party
to the Optional Protocol to the International Covenant on Civil and
Political Rights, which gives the Human Rights Committee such jurisdiction
with regard to Senegal. Moreover, this is what enabled the Committee
to receive and consider communications from individual Senegalese
citizens such as Mody Sy, Famara Kone and Ramata Gueye.
116. In conclusion,
it must be acknowledged that the Senegalese people and their Government
promote and protect human rights each and every day. In any event,
the international community, represented by the United Nations system,
can testify to the truth of this statement.