Appendix V: Guarantees for individuals deprived of their liberty

Professor Theo van Boven, UN Special Rapporteur on torture

Footnote: This material is taken from the third part of the 2004 advance edited version of the report of the United Nations High Commission for Human Rights Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Professor Theo van Boven (E/CN.4/2004/56). It consists of paragraphs 30 to 43 of that report.

Arrests without proper procedures may open the door to further human rights abuses, including torture. The Special Rapporteur notes that to prevent such abuses, law enforcement officials should clearly identify themselves or, at least, the unit to which they belong. Their vehicles should be clearly identifiable and carry number plates at all times. Information on any arrest, including the reasons for the arrest, the time and place of the arrest, and the identity of the officers involved should be duly recorded. As specified in article 9 (2) of the International Covenant on Civil and Political Rights (ICCPR) and principles 13 and 14 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (Body of Principles on Detention), the arrested persons shall be informed, at the time of arrest, of the reasons for their arrest and of their rights, including safeguards against torture or ill-treatment.

Further, relatives or a third person of the arrested person’s choice shall be notified at the time of arrest, detention, imprisonment or transfer. Reference is made to principle 16 of the Body of Principles on Detention and rule 92 of the Standard Minimum Rules for the Treatment of Prisoners. The Special Rapporteur also refers to his recommendation, included in his last report to the Commission on Human Rights: “In all circumstances, a relative of the detainee should be informed of the arrest and place of detention within 18 hours” (E/CN.4/2003/68, para. 26 (g)). With regard to the notification of detention of children, special safeguards should apply in accordance with principle 16 (3) of the Body of Principles on Detention and rule 10 (1) of the Standard Minimum Rules for the Treatment of Prisoners. As far as the detention of foreign citizens is concerned, the Special Rapporteur would like to refer to article 16 (7) of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families which states that the consular authorities of the State of origin of a detained foreigner shall be informed without delay of his or her arrest or detention. This safeguard is also reflected in article 36 (1) (b) of the Vienna Convention on Consular Relations and in principle 16 (2) of the Body of Principles on Detention.

The Special Rapporteur frequently receives allegations according to which persons in custody do not have prompt access, if at all, to a lawyer. The Special Rapporteur is concerned that this situation, often combined with the non-respect of other safeguards, may facilitate acts of torture or other forms of ill-treatment. In this respect, the Special Rapporteur refers to article 14 of ICCPR and principle 17 of the Body of Principles on Detention. Further, in its general comment No. 20, the Human Rights Committee has stated: “the protection of the detainee also requires that prompt and regular access be given to … lawyers” (para. 11). The Commission on Human Rights, in resolution 1994/37, has also stressed “[t]hat the right to have access to a lawyer is one of the basic rights of a person who is deprived of his liberty and that restrictions on this right should therefore be exceptional and always subject to judicial control”. The Special Rapporteur would like to recall that “legal provisions should ensure that detainees are given access to legal counsel within 24 hours of detention … Security personnel who do not honour such provisions should be disciplined. In exceptional circumstances, under which it is contended that prompt contact with a detainee’s lawyer might raise genuine security concerns and where restriction of such contact is judicially approved, it should at least be possible to allow a meeting with an independent lawyer, such as one recommended by a bar association” (ibid.).

The Special Rapporteur has observed that incidents of torture or other forms of ill-treatment frequently occur in the period immediately following deprivation of liberty and during interrogation. The Special Rapporteur recalls that, in compliance with article 15 of the Convention against Torture, confessions made as a result of torture shall not be used as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.

Some basic guarantees shall be applied to avoid torture during interrogation. In accordance with article 11 (combined with article 16) of the Convention against Torture, interrogation rules, instructions, methods and practices shall be kept under systematic review with a view to preventing cases of torture and other forms of cruel, inhuman or degrading treatment. Reference is made to principle 23 of the Body of Principles on Detention according to which the duration of interrogations, the intervals between each interrogation and the identity of the officials conducting the interrogation shall be recorded. The information recorded shall be available to the interrogated person and, when provided by the law, to his or her counsel. As the Special Rapporteur has previously recommended, “each interrogation should be initiated with the identification of all persons present. All interrogation sessions should be recorded, and preferably video-recorded, and the identity of all persons present should be included in the records. Evidence from non-recorded interrogations should be excluded from court proceedings. The practice of blindfolding and hooding often makes the prosecution of torture virtually impossible, as victims are rendered incapable of identifying their torturers. That practice should be forbidden. Those legally arrested should not be held in facilities under the control of their interrogators or investigators for more than the time required by law to obtain a judicial warrant of pre-trial detention which, in any case, should not exceed a period of 48 hours. They should accordingly be transferred to a pre-trial facility under a different authority at once, after which no further unsupervised contact with the interrogators or investigators should be permitted” (ibid.).

In relation to guarantees during interrogation, the Special Rapporteur is of the opinion that, as provided by article 10 of the Convention against Torture, interrogators should receive training in order to ensure that they have the necessary skills to conduct interrogations and interview victims and witnesses. The Special Rapporteur fully supports the measures proposed by Amnesty International according to which these skills shall include the abilities to “gather all available evidence in a case before interviewing a suspect; plan an interview based on that evidence so that an effective interview can be conducted; treat an interview as a means of gathering more information or evidence rather than as a means of securing a confession; conduct an interview in a manner that respects the suspects’ rights; analyse information obtained during the interview, and carry out any further investigation into the case suggested by that analysis; check any admission or confession made by the suspect against available evidence; and evaluate each interview with a view to learning from each experience and developing interviewing and investigative skills further”.

The Special Rapporteur considers that prompt and independent medical examination upon a person’s admission to a place of detention, as provided by rule 24 of the Standard Minimum Rules and principle 24 of the Body of Principles on Detention, constitutes one of the basic safeguards against ill-treatment. The Special Rapporteur reiterates his recommendation that “at the time of arrest, a person should undergo a medical inspection, and medical inspections should be repeated regularly and should be compulsory upon transfer to another place of detention” (ibid.). Further, in accordance with, inter alia, article 6 of the United Nations Code of Conduct for Law Enforcement Officials, rules 22 to 26 of the Standard Minimum Rules and principle 24 of the Body of Principles on Detention, the protection of the health of persons in custody shall be ensured during the whole period of detention.

The safeguards described above are particularly undermined when the detained persons are kept in incommunicado detention or at undisclosed places of detention. The Commission on Human Rights has repeatedly made pronouncements on this matter. In its resolution 2003/38 (para. 14), the Commission “reminds all States that prolonged incommunicado detention may facilitate the perpetration of torture and can in itself constitute a form of cruel, inhuman or degrading treatment, and urges all States to respect the safeguards concerning the liberty, security and the dignity of the person”. The Human Rights Committee, in general comment No. 20, has also stressed that “provisions should … be made against incommunicado detention” (para. 11). The Special Rapporteur refers to a previous report to the General Assembly (A/54/426), in which the former Special Rapporteur, Sir Nigel Rodley, stated that incommunicado detention is the most important determining factor as to whether an individual is at risk of torture. The present Special Rapporteur reiterates the recommendation of his two predecessors and urges all States to declare incommunicado detention illegal.

Incommunicado detention is aggravated when individuals are held in secret places of detention. The Special Rapporteur reiterates that “the maintenance of secret places of detention should be abolished under law. It should be a punishable offence for any official to hold a person in a secret and/or unofficial place of detention. Any evidence obtained from a detainee in an unofficial place of detention and not confirmed by the detainee during interrogation at official locations should not be admitted as evidence in court” (ibid., para. 26 (e)).

Another key safeguard to prevent incidents of torture or other forms of ill-treatment is the prompt and effective access of individuals deprived of their liberty to a judicial or other competent authority. As the previous Special Rapporteur recalled in a report, prompt judicial intervention serves as guarantee that there will be no breach of the non-derogable right not to be subjected to torture or other forms of ill-treatment (see A/54/426, paragraph 42). This safeguard is reflected in article 9 of ICCPR and principles 11, 32 and 37 of the Body of Principles on Detention. The judicial or other competent authority shall review the lawfulness of the detention as well as monitor that the detained individual is entitled to all his/her rights, including the right not to be subjected to torture or other forms of ill-treatment. The Special Rapporteur refers to his general recommendation in which he states that “provisions should give all detained persons the ability to challenge the lawfulness of the detention, e.g. through habeas corpus or amparo. Such procedures should function expeditiously” (E/CN.4/2003/68, para. 26 (i)).

In the exercise of his functions, the Special Rapporteur continues to receive allegations that no adequate measures have been taken after complaints of torture have been brought to the attention of the competent authorities. The Special Rapporteur is concerned that this may facilitate cases of impunity and jeopardizes the right to seek and receive remedy. The Special Rapporteur again draws the attention of the Commission to the recommendation he made in this connection: “When a detainee or relative or lawyer lodges a torture complaint, an inquiry should always take place and, unless the allegation is manifestly ill-founded, the public officials involved should be suspended from their duties pending the outcome of the investigation and any subsequent legal or disciplinary proceedings. Where allegations of torture or other forms of ill-treatment are raised by a defendant during trial, the burden of proof should shift to the prosecution to prove beyond reasonable doubt that the confession was not obtained by unlawful means, including torture and similar ill-treatment. Serious consideration should also be given to the creation of witness protection programmes for witnesses to incidents of torture and similar ill-treatment which ought to extend fully to cover persons with a previous criminal record. In cases where current inmates are at risk, they ought to be transferred to another detention facility where special measures for their security should be taken. A complaint that is determined to be well founded should result in compensation being paid to the victim or relatives. In all cases of death occurring in custody or shortly after release, an inquiry should be held by judicial or other impartial authorities. A person in respect of whom there is credible evidence of responsibility for torture or severe maltreatment should be tried and, if found guilty, punished. Legal provisions granting exemptions from criminal responsibility for torturers, such as amnesty laws (including laws in the name of national reconciliation or the consolidation of democracy and peace), indemnity laws, etc. should be abrogated. If torture has occurred in an official place of detention, the official in charge of that place should be disciplined or punished. Military tribunals should not be used to try persons accused of torture. Independent national authorities, such as a national commission or ombudsman with investigatory and/or prosecutorial powers, should be established to receive and to investigate complaints. Complaints about torture should be dealt with immediately and should be investigated by an independent authority with no connection to that which is investigating or prosecuting the case against the alleged victim. Furthermore, the forensic medical services should be under judicial or another independent authority, not under the same governmental authority as the police and the penitentiary system. Public forensic medical services should not have a monopoly on expert forensic evidence for judicial purposes. In that context, countries should be guided by the principles on the effective investigation and documentation of torture and other cruel, inhuman or degrading treatment or punishment (the Istanbul Principles) as a useful tool in the effort to combat torture” (ibid., para. 26 (k)). The Special Rapporteur strongly recommends that States consistently implement the Istanbul Principles.

The Special Rapporteur points out again that inappropriate conditions of detention may amount to a form of torture or other forms of ill-treatment. He underlines the principle codified in article 10 of ICCPR which states that “all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person”. This principle has been interpreted as “a norm of general international law not subject to derogation” by the Human Rights Committee in its general comment No. 29 on article 4 (para. 13 (a)). The Human Rights Committee has developed its views on the meaning of this principle in its general comment No. 21.

Persons deprived of their liberty shall have access to prompt and adequate medical care. In his report to the Commission on Human Rights at its forty-third session (E/CN.4/1987/13), the then Special Rapporteur on torture, Peter Kooijmans, presented a brief study on the role of medical personnel and torture. The Standard Minimum Rules, in particular rules 22, 24, 25, 26, 52 and 82, as well as principle 24 of the Body of Principles on Detention, provide for a set of medical guarantees. They should be read in conjunction with the Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment adopted by the General Assembly in 1982, the Declaration of Tokyo adopted by the World Medical Association in 1975 and the Declaration of Malta on Hunger Strikers, also adopted by the World Medical Association in 1992.

With regard to access to the outside world, the Special Rapporteur reiterates that persons deprived of their liberty shall be permitted to have contact with, and receive regular visits from, their relatives, lawyers and doctors and, when security requirements so permit, third parties such as human rights organizations or other persons of their choice. In accordance with principle 19 of the Body of Principles on Detention, access to the outside world can only be denied on reasonable conditions and restrictions as specified by law or lawful regulations. The Special Rapporteur notes that such access is not only a basic guarantee to prevent incidents of torture and other forms of ill-treatment, but also forms part of the right to family and private life enshrined in article 12 of the Universal Declaration of Human Rights and article 17 of ICCPR. In the light of the interpretation given by the Human Rights Committee in general comment No. 16, “interference authorized by States can only take place on the basis of law, which itself must comply with the provisions, aims and objectives of the Covenant” (para. 3).

 

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