APT 1 s nine main concerns
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1 65 th session of the UNGA s Third Committee - Resolution on torture and other cruel, inhuman or degrading treatment or punishment (Coordination by the Danish Delegation) APT 1 s nine main concerns 1. Committee against Torture (CAT) and Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (SPT) The Committee against Torture, comprising 10 members only, holds two sessions of three weeks per year. In conjunction with the high level of ratification of the UNCAT (147 states Parties to date) and the adoption of a new reporting procedure aimed notably at improving the rate of State report submissions, these different factors have had, and will increasingly have, severe implications on the capacity of the Committee to discharge its mandate properly and in a timely manner. As requested by the CAT, additional meeting time would be needed to at least partially address this situation, including the backlog in the consideration of State reports and individual communications. Following the 50 th ratification of the OPCAT on 24 September 2009 and in accordance with article 5 1 OPCAT, the membership of the SPT will increase significantly in February 2011, reaching 25 members (elections will be taking place in Geneva on 28 October 2010). Furthermore, the OPCAT has, at the time of writing, 57 States Parties. The implications of such an increase in SPT membership and OPCAT States Parties in terms of additional human and financial resources necessary for the proper functioning of this fundamental mechanism for the prevention of torture, including with regard to its working sessions and field visits, must be adequately addressed by States. The OHCHR, in its report to the 65 th UNGA session (A/65/317), has also highlighted the necessity to appropriately address the needs of the CAT and the SPT. Therefore, the General Assembly should underline the specific needs of the Committee against Torture and of the Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, and specifically request the Secretary-General to ensure the provision of adequate staff and facilities for the CAT and the soon to be enlarged SPT in order to enable them to discharge their respective mandate effectively. The General Assembly should also respond positively to the CAT s request and authorize this Committee to meet for an additional week per session. 1 Association for the Prevention of Torture. 1
2 2. Effective legal and procedural safeguards against torture and other cruel, inhuman or degrading treatment or punishment The adoption and effective implementation of legal and procedural safeguards against torture and other cruel, inhuman or degrading treatment or punishment, including safeguards against arbitrary detention and guarantees of fair trial rights, which have been recently highlighted by the UN Human Rights Council in its resolution 13/19 of 26 March 2010, 2 are not only obligations of States under the UNCAT and the ICCPR, but are also fundamental in order to ensure the protection of the absolute and non-derogable nature of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment. Hence, as it has been repeatedly underlined, notably by the Human Rights Committee, 3 such safeguards must never be made subject to measures of derogation that would circumvent the protection of the non-derogable right not to be subjected to torture or other ill-treatment. Therefore, given the fundamental importance of legal and procedural safeguards against torture and other cruel, inhuman or degrading treatment or punishment, as well as the critical necessity to ensure the protection of the absolute and non-derogable character of the prohibition of torture and other illtreatment, the General Assembly should urge States to adopt, implement and fully comply with such legal and procedural safeguards, and recall that these safeguards must never be made subject to measures that would circumvent the protection of the non-derogable right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment. 3. Inadmissibility of evidence obtained by cruel, inhuman or degrading treatment or punishment 4. Adequate corroboration of statements, including confessions, used as evidence The obligation set out in article 15 UNCAT is a fundamental preventive safeguard against torture, as it serves to remove a powerful incentive to torture. Two main arguments support its application in cases where the evidence has been obtained by other cruel, inhuman or degrading treatment or punishment. First, as a preventive measure, and given the fact that the list of preventive measures contained in article 16 1 UNCAT (prohibiting cruel, inhuman or degrading treatment or punishment) is not exhaustive, it can legitimately be argued that States Parties to the UNCAT have an obligation to extend the principle contained in article 15 UNCAT to other cruel, inhuman or degrading treatment or punishment as mentioned in article 16 1 UNCAT. Second, as the obligation laid out in article 15 UNCAT stems from the absolute prohibition of torture, and as the prohibition of cruel, inhuman and degrading treatment or punishment is equally absolute in nature, it necessarily follows that any evidence obtained by cruel inhuman or degrading treatment or punishment (CIDTP) must be declared inadmissible in any proceedings. This extension of article 15 UNCAT to CIDTP is supported by positions taken by the Committee against Torture in its General Comment 2 4 and in the State Party reporting procedure 5, as well as by the Human Rights Committee 6. 2 Human Rights Council Resolution 13/19, A/HRC/RES/13/19, Human Rights Committee, General Comment 29, 15-16, and General Comment 32, 6 and 41. See also Human Rights Council Resolution 13/19, A/HRC/RES/13/19, PP2. 4 Committee against Torture, General Comment 2, CAT/C/GC/2, 3, 6 and Committee against Torture, Concluding observations on FYROM, A/63/44, 44 (18); on Japan, A/62/44, 41 (16); on Kazakhstan, A/64/44, 41 (29); on Uzbekistan, A/63/44, 37 (20); on Australia, 2
3 In addition, as confessions are often considered the golden proof in many justice systems, as highlighted by the Special Rapporteur on torture in his 2009 interim report to the General Assembly 7 and in his 2010 Global Study on torture and CIDTP 8, there is often considerable pressure on investigating authorities to obtain incriminating statements or confessions, which may lead to the use of unlawful means such as torture or other ill-treatment in order to obtain such statements. Hence, it is crucial that States ensure that no incriminating statement or confession is used as evidence in any proceedings without further supportive evidence. Therefore, the General Assembly should urge States to ensure in all circumstances that no statement or confession or other evidence obtained as a result not only of torture, but also of other cruel, inhuman or degrading treatment or punishment may be invoked in any proceedings, except against a person accused of torture or other cruel, inhuman or degrading treatment or punishment as evidence that such statement or confession or other evidence was made or provided. Moreover, the General Assembly should call on States to engage in justice reforms aimed at reducing the probative value of confessions in any proceedings, and urge States to ensure, with a view to preventing acts of torture and other cruel, inhuman or degrading treatment or punishment, that statements, including confessions, or other evidence are not relied upon as evidence without sufficient corroboration. 5. Principle of non-refoulement in cases of persons in danger of being subjected to cruel, inhuman or degrading treatment or punishment 6. Effective, independent and impartial review of the decisions to transfer persons to another State, prior to the execution of the decision, in order to ensure that the principle of non-refoulement is complied with Although article 3 UNCAT mentions only the danger of torture, the principle of nonrefoulement should also be applied in cases of persons in danger of being subjected to other cruel, inhuman or degrading treatment or punishment. This extension is justified for many reasons. In particular, given its fundamentally preventive nature, and hence the application of article 16 1 to article 3 UNCAT, as well as the fact that the principle of non-refoulement stems from the absolute prohibition of torture, and therefore should also be stemming from the absolute prohibition of other cruel, inhuman or degrading treatment or punishment, the principle of non-refoulement should also be applied to CIDTP. Once again, this position is supported by views developed by the Committee against Torture 9 and the Human Rights Committee. 10 Furthermore, as highlighted by the Committee against Torture, 11 the Human Rights Committee 12 and different UN Special Procedures, 13 it is crucial, in order to ensure A/63/44, 39 (30); on Indonesia, A/63/44, 42 (14); on the Russian Federation, A/62/44, 36 (21); on Tajikistan, A/62/44, 38 (19); on Ukraine, A/62/44, 45 (11); on The Philippines, A/64/44, 52 (23). 6 Human Rights Committee, General Comment 20, Report of the Special Rapporteur on torture, A/64/215, Report to the Human Rights Council, Study on the phenomena of torture, cruel, inhuman or degrading treatment or punishment in the world, including an assessment of conditions of detention, A/HRC/13/39/Add.5, Committee against Torture, General Comment 2, CAT/C/GC/2, 3, 6, 19 and 25. In the State Party reporting procedure, see Committee against Torture, Concluding observations on Italy, A/62/44, 40 (12); on Lithuania, A/64/44, 43 (9); on The Philippines, A/64/44, 52 (14). 10 Human Rights Committee, General Comment 20, Committee against Torture, Agiza v. Sweden, Communication n 233/2003,
4 that the principle of non-refoulement is complied with, that an effective, independent and impartial review, preferably a judicial review, of the decision to expel, return, extradite or in any other way transfer a person to another State is taking place prior to the execution of that decision. Therefore, the General Assembly should urge States not to expel, return ( refouler ), extradite or in any other way transfer a person to another State where there are substantial grounds for believing that the person would be in danger of being subjected to torture or other cruel, inhuman or degrading treatment or punishment. Moreover, the General Assembly should urge States to ensure access to an effective, independent and impartial review, preferably a judicial review, of the decision to expel, return ( refouler ), extradite or in any other way transfer a person to another State prior to the execution of any such form of transfer, with a view to ensuring compliance of the decision with the principle of nonrefoulement. 7. The effective prohibition of cruel, inhuman or degrading treatment or punishment (CIDTP) Although article 4 UNCAT mentions only torture, it could legitimately be argued that States shall also criminalise other cruel, inhuman or degrading treatment or punishment. The list of preventive measures mentioned in article 16 1 UNCAT (prohibiting cruel, inhuman or degrading treatment or punishment) is not exhaustive. As criminalisation of an act has also a deterrent/preventive effect, it could be argued that a combination of article 4 and article 16 1 UNCAT makes it mandatory for States to criminalize CIDTP as well. This view is supported by recent positions taken by the Committee against Torture in its General Comment 2 14 and in the State Party reporting procedure, 15 as well as by the Human Rights Committee. 16 Therefore, given the importance of criminalisation as a means to effectively prevent an impermissible act, the General Assembly should not only urge States to prohibit under domestic law acts of cruel, inhuman or degrading treatment or punishment, but also encourage them to give due consideration to criminalising cruel, inhuman or degrading treatment or punishment, including by making them offences punishable by appropriate penalties which take into account the respective level of gravity of each of these types of treatment or punishment, and to submit for prosecution or extradite the persons alleged to have committed those acts. 12 Human Rights Committee, Alzery v. Sweden, Communication n 1416/2005, See also Human Rights Committee, General Comment 31, Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, A/62/263, 53, 81b and 82b; Report of the Working Group on Arbitrary Detention, E/CN.4/2004/3, 68-71; Report of the Special Rapporteur on the independence of judges and lawyers, A/63/271, Committee against Torture, General Comment 2, CAT/C/GC/2, 3, 6 and Committee against Torture, Concluding observations on Australia, A/63/44, 39 (18) and on FYROM, A/63/44, 44 (10). 16 Human Rights Committee, General Comment 20, 8. 4
5 8. International Convention for the Protection of All Persons from Enforced Disappearance Situations of enforced disappearance, where a detainee is deprived of any contact with the outside world and placed in secret or unacknowledged detention, are not only clearly conducive to torture and other ill-treatment, but per se also constitutes a violation of the absolute prohibition of torture and other cruel, inhuman or degrading treatment or punishment. This has notably been recognised by the Committee against Torture 17 and the Human Rights Committee, 18 as well as by the UNGA Declaration on the Protection of all Persons from Enforced Disappearance (article 1 2). Therefore, given the fundamental importance of the prohibition of enforced disappearance in the fight against torture and other ill-treatment, as well as the necessity to accelerate the current pace of ratifications of the Convention on Enforced Disappearance, which has not yet entered into force, the General Assembly should urge all States that have not yet done so to sign and ratify this Convention as a matter of priority. 9. A comprehensive protection against equipment related to torture and other cruel, inhuman or degrading treatment or punishment The wording of last year s UNGA resolution on torture and other cruel, inhuman or degrading treatment or punishment 19 should be strengthened in order to more effectively prevent the use of equipment that is directly or that could be indirectly related to torture or other cruel, inhuman or degrading treatment or punishment. Therefore, the General Assembly should call upon all States to take appropriate effective legislative, administrative, judicial and other measures to prevent and prohibit the production, trade, export, import and use of equipment which have no practical use other than for the purpose of torture or other cruel, inhuman or degrading treatment or punishment as well as to impose strict controls on the production, trade, export, import and use of equipment that could be used for the purpose of torture or other cruel, inhuman or degrading treatment or punishment. APT Geneva, 14 October Committee against Torture, Concluding observations on the United States of America, A/61/44, 37 (18); see also Committee against Torture, Concluding observations on China, A/64/44, 38 (14). 18 Human Rights Committee, Barbarín Mojica V. Dominican Republic, Communication 449/1991, CCPR/C/51/D/449/1991, 5.7 and Human Rights Committee, General Comment 31, UNGA Resolution 64/153, A/RES/64/153, 22. 5
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