Präsentation, M. Nowak - Serbia

UN Special Rapporteur on Torture

Manfred NowakProfessor of International Human Rights Law at the University of ViennaDirector, Ludwig Boltzmann Institute of Human Rights (Vienna)UN Special Rapporteur on TortureBelgrade, 4 September 2009

Prevention and Prohibition of Torture and Other Cruel, Inhuman

or Degrading Treatment or Punishment


International Standards


1. DEFINITION OF TORTURE (ART. 1 CAT)

a) Causing of severe physical and/or mental pain or suffering

b) State responsibility

c) Intention; applied to achieve a certain purpose (confession, information, intimidation, discrimination…)

d) Powerlessness, defenselessness of the victim, which is completely in the torturer’s power (especially during detention)

→ direct attack on the victim’s dignity and personal integrity→ specific form of violence→ examples:

„Palestinian Hanging” Abu-Ghraib (prisoner at dog leash)


2. DEFINITION OF CRUEL, INHUMMAN AND DEGRADING TREATMENT OR PUNISHMENT (CIDT: ARTICLE 16 CAT)

a) Intensity of Pain Doctrine (ECtHR)

b) Purpose Doctrine

c) Powerlessness Doctrine

d) CIDT also outside detention: excessive use of police violence, principle of proportionality

e) Corporal and capital punishment

f) Inhuman and degrading conditions of detention

g) Prohibition of refoulement


3. DEVELOPMENT OF INTERNATIONAL LEGAL INSTRUMENTS AGAINST TORTURE

After World War II:

a) Article 5 UDHR 1948

a) Article 3 ECHR 1950

a) Article 7 CCPR 1966

a) Article 5 ACHR 1969

1970s:

Systematic practice of torture in many parts of the world, in particular during the military dictatorships in Latin America.

Campaign against Torture by Amnesty International and other NGOs


4. PROHIBITION OF TORTURE AS AN ABSOLUTE AND NON-DEROGABLE RIGHT IN INTERNATIONAL LAW

a) Absolute vs. Relative Rights e.g. freedom of expression, right to life, prohibition of torture and slavery;

b) Non-derogable vs. Other Rights e.g. personal liberty, right to life (Art. 15 ECHR), prohibition of torture,

prohibition of retro-activity of penal laws; c) Torture vs. Cruel, Inhuman or Degrading Treatment (CIDT) “relativity” of CIDT (principle of proportionality)

d) Reasons for the special Protection of the Prohibition of Torture as Ius CogensMiddle Ages → gradual elimination from criminal lawNational Socialism → absolute prohibitionChile → special protection mechanisms (criminal law, prevention, victim protection, fact

finding)Former Yugoslavia → international criminal tribunals, systematic torture as a crime

against humanity;


5. FIGHTING IMPUNITY OF PERPETRATORS

a) Declaration against Torture 1975

b) Convention against Torture (CAT) 1984Article 4: Obligation to criminalize tortureArticle 5-9: Territorial, personal and universal jurisdiction

c) Rome Statute of an International Criminal Court 1998Systematic or widespread practice of torture as crime

against humanity


6. PREVENTION OF TORTURE

a) Convention against Torture 1984

Article 2: comprehensive measuresArticle 3: non-refoulementArticle 10: training of law enforcement personnelArticle 11: modernization of interrogation techniquesArticle 15: non-applicability of information extracted by torture

b) Preventive visits to places of detention

ICRCJean-Jacques GautierDraft Costa Rica Protocol 1980European Convention for the Prevention of Torture 1987OPCAT 2002


7. RIGHT OF VICTIMS TO A REMEDY AND REPARATION

Convention against Torture 1984

Article 13: independent and impartial investigation of all complaints by victims of torture and CIDT: “police-police”→ disciplinary, criminal and civil remedies

Article 14: right to adequate reparation:rehabilitation, compensation etc.→ universal civil jurisdiction


Torture in Prisons and other Places of

Detention


1. TORTURE AND CIDT IN POLICE CUSTODY

a) Reasons: Extraction of confessions and information; intimidation

b) Remedies: keep police custody as short as possible (48 hours)

quick access of family members, doctors, lawyers

monitoring of interrogations (presence of lawyers, video taping etc)

right to habeas corpus

medical examination (forensic experts)


2. TORTURE AND CIDT IN PRE-TRIAL DETENTION

a) Reasons: Extraction of confessions and information, preparation for prison life (“initiation rites“, “welcome party“); disciplinary punishment; solitary confinement for investigative purposes; corruption

b) Remedies: separation from police (Ministry of Interior)

separation of pre-trial detainees from convicted prisoners

pre-trial detention as exception, not as rule (Article 9/3 CCPR)

non-custodial measures (release on bail etc.)

keep pre-trial detention as short as possible (6 months)

right to habeas corpus

effective functioning of administration of criminal justice


3. TORTURE AND CIDT IN PRISONS

a) Reasons: Disciplinary measures (corporal punishment, solitary confinement)

Punitive penal policies (strict or special regimes)

Inter-prisoner violence and hierarchies

Discrimination of vulnerable groups (children, elderly, persons with disabilities, gays, lesbians and transgender people, women)

b) Remedies: Non-punitive penal policies (Article 10 CCPR: rehabilitation and re-socialisation of offenders; “principle of normalization”)

Prohibition of corporal punishment

Administration of prisons as a responsible governmental function: non-delegation to prisoners (“bureau internes”) or private companies

Separation of women from men, of minors from adults

Pro-active measures for protection of vulnerable and discriminated groups

Detention Monitoring at the International Level



1. TERMS OF REFERENCE OF SPECIAL PROCEDURES IN GENERAL

During fact-finding missions, special rapporteurs or representatives of the Commission on Human Rights, as well as United Nations staff accompanying them, should be given the following guarantees and facilities by the Government that invited them to visit its country:

(a) Freedom of movement in the whole country, including facilitation of transport, in particular to restricted areas;

(b) Freedom of inquiry, in particular as regards:

(c) Access to all prisons, detention centres and places of interrogation;

(d) Contacts with central and local authorities of all branches of government;

(e) Contacts with representatives of non-governmental organizations, other private institutions and the media;

(f) Confidential and unsupervised contact with witnesses and other private persons, including persons deprived of their liberty, considered necessary to fulfil the mandate of the special rapporteur; and

(g) Full access to all documentary material relevant to the mandate;


1. TERMS OF REFERENCE OF SPECIAL PROCEDURES (cont.)

(h) Assurance by the Government that no persons, official or private individuals who have been in contact with the special rapporteur/representative in relation to the mandate will for this reason suffer threats, harassment or punishment or be subjected to judicial proceedings;

(i) Appropriate security arrangements without, however, restricting the freedom of movement and inquiry referred to above;

(j) Extension of the same guarantees and facilities mentioned above to the appropriate United Nations staff who will assist the special rapporteur/representative before, during and after the visit.


2. TERMS OF REFERENCE OF THE SPECIAL RAPPORTEUR ON TORTURE

“For the Special Rapporteur on the question of torture, it is axiomatic that freedom of inquiry in places of detention implies: • unimpeded access, with or without prior notice, to any place where persons may be deprived of their liberty (e.g. police lock-up, pretrial, prison,juvenile, administrative, psychiatric or other facilities, as well as detention facilities within military installations); • not being subject to arbitrary time limits for carrying out his work (e.g. visiting hours, working hours of daytime prison staff, etc.); • free movement within the facility and access to any room in order to gather information, including by use of electronic means, such as photography; • having access to any detainee or staff, and the possibility of conducting confidential and private interviews, unsupervised by government officials, in places either chosen by the Special Rapporteur or in cooperation with the detainee; • being assisted by independent medical specialists who are qualified to document and assess injuries, in accordance with the Istanbul Protocol, as well as being assisted by independent interpreters; and being provided with copies of relevant information and documentation as requested.“ (E/CN.4/6/2006)


3. IMPORTANCE OF UNANNOUNCED VISITS

• Purpose of prevention

• Preparation of prisons and detainees

• Replacing paradigm of opacity by one of transparency

• Letters of authorization and hotline with authorities


4. COMPOSITION OF THE TEAM

• Human Rights Experts

• Interpreters

• Forensic Experts

• Security Staff

• Gender balance

UN Special Rapporteur on TortureUN Special Rapporteur on Torture

5. SCHEDULE OF VISITS TO PLACES OF DETENTION

• Courtesy v. Effectiveness

• Prison register and documents

• Disciplinary Cells

• Selection of detainees to be interviewed

• Protection of victims and witnesses


6. PRIVATE INTERVIEWS WITH DETAINEES

• Risks for detainees

• Risks for interviewers

• Informed consent

• Selection of place for interview

• Conduct of interview

• Confidentiality v. reporting

• Follow-up

• Protection of interview partners


Thank you for your attention!

OHCHRhttp://www.ohchr.org/english/issues/torture/rapporteur/

Ludwig Boltzmann Institute of Human Rightshttp://www.univie.ac.at/bim

Präsentation, M. Nowak - Serbia

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