Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

The Committee notes the information supplied by the Government in its report and the statement made to the Conference Committee in 1990.

In the comments that it has been making for more than ten years, the Committee has referred to section 44 of the Penal Code, under which, where offences are committed by "savages", the judge may replace sentences of imprisonment by assignment to a penal agricultural colony for an unspecified period of up to 20 years, irrespective of the maximum duration of the sentence that the offence would entail if it had been committed by a "civilised man".

The Committee notes section 20 of the draft Penal Code of September 1989, which replaces the draft of 1986, according to which "any person who, as a result of his culture or customs, commits an act that is punishable without being able to duly understand the offensive nature of the act or being responsible for his behaviour as a result of such understanding, shall be exempt from responsibility for such an act. Where, for these reasons, responsibility is diminished, the penalty shall be reduced even to below the statutory minimum".

The Committee noted that the time-limit for the enactment of the new Penal Code had been extended until April 1990. In June 1990, the Government representative to the Conference Committee stated that the time-limit had been once again been extended until July 1990.

The Committee notes that the new Penal Code has not yet been adopted. It also notes that, in October 1990, a draft text was submitted to make urgent amendments to the penal legislation; the commenting note on the reasons for the draft amendments referred to the fact that enactment of the projected overall reform of the Code was "not foreseen in the near future". The Committee regrets to note that the draft urgent amendments provide neither provide for the repeal of section 44 of the Code currently in force, which has been the subject of the Committee's comments for many years, nor for the adoption of section 20 of the draft Penal Code.

The Committee hopes that the Government will take the necessary measures without delay to repeal section 44 of the Penal Code.