(Further to our statement of yesterday, October 28th we are forwarding the full text of the statement by the Special Rapporteur on Torture and other cruel, inhuman made on October 23rd at the 63rd Session of the General Assembly).
63rd session of the General Assembly
Third Committee
Item # 64(b)
23 October 2008
New York
Chairperson, Distinguished Representatives and Observers,
I. The 60th Anniversary of the Universal Declaration of Human Rights: Recalling the inherent Dignity of Detainees
The 60th anniversary of the Universal Declaration of Human Rights (UDHR) is an occasion to celebrate, but also a call for reflection and stock-taking of the current state of human rights in the world. Article 5 of the UDHR stipulates in unequivocal terms that [n]o one shall be subjected to torture or to cruel, inhuman , which laid the foundations for a number of international and regional instruments aimed at the prohibition and prevention of torture, inter alia Articles 7 and 10 of the International Covenant on Civil and Political Rights, the UN Convention Against Torture (CAT) and its Optional Protocol (OPCAT), the European Convention for the Prevention of Torture, and the Inter-American Convention to Prevent and Punish Torture and their monitoring bodies, including the recently established Subcommittee on the Prevention of Torture and national preventive mechanisms. The UN also established the UN Voluntary Fund for Victims of Torture and the Special Rapporteur on Torture. There are not many other human rights which have received as much attention by the international community, States and civil society. The prohibition of torture is absolute, non-derogable and constitutes ius cogens.
However, in sharp contrast to this progress, it is very unclear whether the scale on which torture and other forms of ill-treatment are committed worldwide has actually decreased. Based on my work as UN Special Rapporteur on Torture, including numerous fact finding missions and unannounced visits to places of detention, I unfortunately have observed time and again that detainees are among the most vulnerable and forgotten groups of human beings in most societies, that the general conditions of detention are all too often appalling, constituting themselves cruel, inhuman and degrading treatment, and that torture is still a frequent or even standard practice in many countries of todays world.
One of the major reasons for this state of affairs in many countries is the malfunctioning of the administration of criminal justice. The strong reliance on confessions as proofs in the criminal justice system exerts pressure on the police to extract confessions and other information from detainees. Deprivation of personal liberty and the opacity surrounding places of detention create a situation of powerlessness which, in turn, is conducive to torture. Often detainees are held incommunicado or even in a situation of enforced disappearance, where nobody apart from the tormentors knows where they are. The typical situation in which torture occurs is in a closed interrogation room where the victim is handcuffed and shackled to a chair, perhaps even naked and blindfolded. Torture methods comprise an abhorrent variety of cruelties including the infliction of brute force such as the beating of a detainee with fists, rifle butts, truncheons, iron rods or cables, or more elaborate techniques such as electrocution, suspension from the ceiling, and waterboarding. These methods are applied to political prisoners as well as detainees suspected of ordinary crimes.
The opacity surrounding places of detention also results in a chronic lack of awareness among the general public of what life in places of detention actually looks like. Not only are the detainees locked up, society is also locked out. In many countries, pre-trial detention of person suspected of having committed a crime is not the exception, but the rule. Since the criminal justice system is not functioning properly, the combined time detainees spend in police custody and remand detention may amount to several years. Aggravated by poverty and a lack of empathy for detainees, the high number of pre-trial detainees leads to severe overcrowding of places of detention resulting in restricted access to adequate food and health care, ventilation, light, and low levels of hygiene. Corruption, hierarchical relations among detainees and a high degree of inter-prisoner violence exacerbate the situation. Usually, poor people suffer most. Therefore, I would like to reiterate the appeal of one of my predecessor, Sir Nigel Rodley, who raised the urgent need for
[
] a radical transformation of assumptions in international society about the nature of deprivation of liberty. The basic paradigm, taken for granted over at least a century, is that prisons, police stations and the like are closed and secret places, with activities inside hidden from public view. (
) What is needed is to replace the paradigm of opacity by one of transparency. The assumption should be one of open access to all places of deprivation of liberty. 1
Opening up places of detention to inspections by independent bodies, as foreseen in the OPCAT, is one effective method of preventing torture and improving prison conditions; investigating thoroughly all allegations of torture, ill-treatment an inhuman prison conditions, and bringing the perpetrators to justice another. I have no illusions that eradicating torture is a matter that can be resolved over night rather, the first pre-condition of an effective policy is to acknowledge existing problems, followed by the implementation of a complex set of measures. It is known which measures need to be taken. What is needed is the political will of Governments to implement them. The Office of the High Commissioner for Human Rights and various UN bodies specialized in combating torture, including the Special Rapporteur on Torture, stand ready to assist Governments in their efforts to eradicate torture and improve prison conditions.
The Preamble of the UDHR recognizes the inherent dignity of all members of the human family. On the eve of the 60th anniversary, reinforcing the High Commissioners Dignity and Justice for Detainees initiative, I wish to draw the attention of the international community to the fate of detainees as a particularly vulnerable group deprived of their inherent right to dignity. In addition to being subjected to torture, millions of detainees around the world live under conditions that can only be described as a prolonged situation of cruel, inhuman or degrading treatment. While significant progress has been achieved over the last 60 years with regard to many human rights, this unfortunately does not alleviate the destiny of most persons deprived of their liberty. I, therefore, call for a renewed effort to empower detainees to live in dignity and enjoy the rights provided for in the UDHR.
II. Protecting persons with disabilities from torture
The recent entry into force of the Convention on the Rights of Persons with Disabilities and its Optional Protocol provides a timely opportunity to review the anti-torture framework in relation to persons with disabilities. They run the risk of being subjected to torture and cruel, inhuman and degrading treatment in a variety of contexts:
First, they are often segregated from society in institutions, including prisons, social care centres, orphanages and mental health facilities. They are de-facto deprived of their liberty, sometimes for long periods of time, either against their will or without their free and informed consent. Inside these institutions, persons with disabilities are frequently subjected to neglect, severe forms of restraint and seclusion, as well as physical, mental and sexual violence.
Similarly, in the private sphere, persons with disabilities are especially vulnerable to violence and abuse, including sexual abuse, inside the home, at the hands of family members, caregivers, health professionals and members of the community.
In addition, persons with disabilities have been disproportionately exposed to medical experimentation and intrusive and irreversible medical treatments without their consent. Examples include sterilization, abortion and interventions aiming to correct or alleviate a disability, such as electroshock treatment and mind-altering drugs including neuroleptics.
The new Convention addresses the following points of particular relevance for the torture mandate:
It contains a very strong non-discrimination clause that prohibits any direct or indirect discrimination based on a disability, including in relation to deprivation of liberty or solitary confinement. In terms of guarantees related to the conditions of detention of persons with disabilities, the clarification of “reasonable accommodation provides a welcome standard.
Another key-provision is the requirement of free and informed consent contained in several articles of the Convention. From a torture mandate point of view a State party to the Convention has to take specific measures to ensure that comprehensive information about possible medical treatments or interventions and their consequences is provided to persons with disabilities, that they give their explicit consent in a verifiable form and that no pressure is put on them to consent. In the case of minors, it is those exercising patrias potestas, who have to give their free and informed consent, unless the intervention is carried out for therapeutic purposes and in the best interest of the child giving due weight to their views.
The notion of consent and acquiescence by a public official or other person acting in official capacity contained in the Convention against Torture extends State responsibility to the private sphere, including all types of medical institutions, but also the family and community, and should be interpreted to include State failure to protect persons within its jurisdiction from torture and ill-treatment committed by private individuals. State acquiescence with regard to violence against persons with disabilities may take many forms, including discriminatory legislative frameworks and practices such as laws depriving them of their legal capacity.
Based on the above, I recommend that States ratify the Convention and take the following steps to ensure that persons with disabilities fully benefit from anti-torture protection:
In keeping with the Convention, States shall adopt legislation that recognizes the legal capacity of persons with disabilities and ensure full access to justice for persons with disabilities, including to complaints procedures for those who feel that their right to free and informed consent has been violated and who wish to complain about the use of restraints.
States shall establish independent bodies charged with, respectively extend the mandates of existing anti-torture mechanisms to, oversight of whether the new standards are respected in practice in all cases of de-facto deprivation of liberty. I recommend that States ensure that the full range of safeguards against torture are available to persons with disabilities, in particular those in any de-facto detention situation.
Finally, States should widely disseminate the Convention and develop awareness-raising campaigns for the public at large and training for all relevant professional groups (e.g. judges, lawyers, law enforcement officials, civil servants, local Government officials, personnel working in institutions and health personnel) on the standards it sets.
III. Solitary confinement
In my capacity as Special Rapporteur on Torture, I wish to draw attention to the Istanbul Statement on the Use and Effects of Solitary Confinement, which, taking into account latest research, aims at promoting the application of existing human rights standards to the use of solitary confinement. I would strongly encourage States to reflect upon the Statement as a useful tool in efforts to promote the respect and protection of the rights of detainees.
Solitary confinement is typically used as a form of punishment for disciplinary infractions by detainees, to isolate suspects during criminal investigations and as a judicial sentence. Sometimes, as indicated above, it is used as a form of treatment or punishment of persons with disabilities in institutions or to manage certain groups of prisoners, such as those considered in need of psychiatric care.
The weight of accumulated medical and psychological evidence, to date, points to the serious and adverse health effects of the use of solitary confinement: from insomnia and confusion to hallucinations and mental illness. The key adverse factor of solitary confinement is that socially and psychologically meaningful contact is reduced to the absolute minimum, to a point that is insufficient for most detainees to remain mentally well functioning. Given the uncertainty as to the length of isolation, pre-trial detainees may be affected even more negatively than other detainees by the long-term isolation.
Echoing findings of other human rights mechanisms, I wish to emphasize that the imposition of solitary confinement for the extraction of a confession amounts torture. In other cases the prolonged isolation of detainees may amount to cruel, inhuman or degrading treatment. I, therefore, recommend that the use of solitary confinement be
kept to a minimum, particularly during pre-trial detention. It should be strictly and specifically regulated by law (maximum duration, etc.) and exercised under judicial supervision. Regardless of the specific circumstances of its use, the level of social contacts for prisoners should be raised.
IV. Country visits
Chairperson,
First of all I would like to take the opportunity to thank Governments for the invitations extended to me. As I have regularly underlined, inviting the Special Rapporteur on torture means opening up to independent scrutiny and being ready to openly discuss all the questions and challenges related to torture, ill-treatment and conditions of detention in a given country. It should also be a starting point for joint work to address concerns and I am at the disposal of States I have visited to facilitate assistance with the implementation of my recommendations.
With respect to the visit to Equatorial Guinea, which was initially scheduled to take place from 30 January to 8 February 2008, I am happy to announce that new dates have been fixed for 9 to 18 November 2008. Dates for the visit to Iraq are still under consideration. I also hope that dates for the visit to the Russian Federation, originally postponed in October 2006, will be forthcoming.
Denmark
I undertook a visit to Denmark, including Greenland, in May 2008. Whereas I am impressed by the high standards of prison conditions and the fact that no allegations of torture and only very few complaints of ill-treatment were received during the visit, I regretted that a specific crime of torture is still missing in Danish criminal law. Notwithstanding the Governments efforts to restrict the use of solitary confinement, the extensive recourse to this practice remains a matter of concern, particularly with respect to pre-trial detainees. I am also concerned about allegations concerning rendition flights operating through Denmark and Greenland and plans to resort to diplomatic assurances to return suspected terrorists to countries known for their practice of torture. At the same time, I was impressed with some very positive practices that I witnessed, such as the fact that the hallmark of the prison system in Denmark is the principle of normalization, meaning that life inside reflects, to as great an extent as possible, life outside the prison.
Moldova
Together with the Special Rapporteur on violence against women, in July 2008, I visited the Republic of Moldova, including its Transnistrian region. While recognizing significant progress in terms of the legislative framework and welcoming that human rights appears to be a priority for the present Government, we expressed concern with the significant gaps between the normative framework and the reality on the ground in relation to the fight against torture, inhuman conditions of detention, as well as against violence against women. The protective infrastructure for victims of violence in particular was insufficient. We also observed that ill-treatment during the initial period of police custody was widespread, that complaints mechanisms were largely ineffective and that conditions in prison and police custody facilities were still a source of major concern. We therefore recommended that the protection for victims of violence be strengthened, that safeguards for detainees be reinforced and that rehabilitation and reintegration be put at the centre of Moldovas penal policies and laws. We further welcomed the recent law on preventing and combating family violence and the establishment of a national preventive mechanism under the Optional Protocol to the Convention against Torture and called for their effective implementation.
Chairperson, Distinguished Representatives and Observers,
I thank you for your attention, and look forward to a fruitful dialogue.
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[Footnote]
1. 3 July 2001, A/56/156, §35
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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984. The above statement has only been forwarded by the AHRC.
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