UNITED
NATIONS
Economic and Social Distr.
GENERAL
% j Council
E/CN.4/1988/17 4
12 January 1988
ENGLISH
Original ENGLISU/SPANISH
COMMISSION ON HUMAN RIGHTS
Forty—fourth session
Item 10 (a) of the provisional agenda
QUESTION OF THE HUMAN RIGHTS OF ALL PERSONS SUBJECTED
TO PtNY FORM OF DETENTION OR IMPRISONMENT
TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT
OR PUNISHMENT
Report by the Special Rapporteur, Mr. P. Kooijmans, pursuant to
Commission on Human Rights resolution 1987/29
GE. 88—10079/2110G
E/CN. 4/1988/17
Daqe ii
CONTENTS
Chapter
I.
I I
V I.
VII.
Paraqraphs ____
1—3
4 — 13
14 — 22
14 — 16
17 — 20
21
22
23 — 39
40 — 49 14
42 — 44 14
45 1 5
46 15
47
48
50 — 58
59 — 72
73 — 81
Pane
1
2
5
5
5
7
7
8
Introduction
ISSUES RELATING TO THE MANDATE
ACTIVITIPE OF THE SPECIAL RAPPORTEUR
A. Corresoondence
S. Urnent action
C. Consultations
D. On—site observations
II I. NAPIONAL STANDARDS FOR CORRECTING AND/OR
PREVENTING IVRTURE
IV. WRTURE AND OTHER CRUEL, INHUMAN OR DEGRADING
TREATMENT OR PUNISHMENT
A. Corporal punishment
B. Inhuman prison conditions
C. Generally apolied harsh treatment
D. Prolonged stay on death row
E. Detention of minors together with adults
V. N ALYSIS OF INFORMATION RECEIVED BY THE
SPECIAL RAPPORTEUR ON THE PRACTICE OF TORTURE
PREVENTIVE MEASURES
CONCLUSIONS AND RECO I 1E)CATIONS
15
15
17
20
23
E/CN. 4/1988/17
page 1
Introduction
1. At its forty—first session, the Co,riznissior, on Human Rights, by
resolution 1985/33, decided to appoint a special rapporteur to examine
questions relevant to torture. On 12 May 1985, the Chairman of the Commission
appointed Mr. Peter Kooijmans (Netherlands) Special Rapporteur. Pursuant to
that resolution, the Special Rapporteur, inter alia , seeks and receives
credible and reliable information concerning torture and responds effectively
to such information.
2. As requested, Mr. Kooijmans submitted a comprehensive report to the
Commission at its forty—second session (E/CN.4/1986/15) and informed the
Commission of his activities, together with his conclusions and
recoimqenc3ations. The mandate was subsequently renewed at the
forty—second session of the Commission by resolution 1986/50.
3. At its forty—third session, the Commission had before it a report of the
Special Rapporteur (E/CN.4/1987/13) and adopted resolution 1987/29, by which
it again decided to continue the mandate of the Special Rapporteur for another
year, in order to enable him to submit further conclusions and recommendations
to the Commission at its forty—fourth session. The Economic and Social
Council endorsed that resolution by decision 1987/146.
E/CN. 4/1988/17
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I. ISSUES RELATING ¶10 THE MANDATE
4. The entry into force of the Convention aqainst Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment on 26 June 1987 may be called an
important step ‘forward in the effort to eradicate the phenomenon of torture.
It is encouraqing indeed that this Convention, which has now been ratified by
28 States, came into force only slightly more than two years after it had been
opened for signature. That may be taken as evidence of the fact that the
international community seriously wants to come to grips with one of the most
abhorrent forms of violations of human rights. It is, therefore, to be hoped
that in the near future the number of parties to the Convention will
considerably increase to the point where it is almost universally applied.
5. The Committee, to be established under article 17 of the Convention, was
elected on 26 November 1987. It therefore seems appropriate to compare in
this report the function entrusted by the Convention to the Committee with the
mandate of the Special Rapporteur as determined by the Commission.
6. First of all, the Committee only has competence with regard to those
States which have become parties to the Convention, whereas the
Special Rapporteur — as is the case with all the thematic procedures
established by the Commission — can address the Governments of all States
Members of the United Nations and of all States which have observer statuE
with that organization. Of ‘lore importance, however, is the difference in
character between the mandate of the Committee and that of the
Special Rapporteur. The Committee has to determine whether parties to the
Convention comoly with their obligations under that treaty. It can do this in
various ways: by considering the reports which States parties have to submit
under article 19 of the Convention and by commenting on these reports; by
considering State—complaints or individual co,ralaints whenever its competence
to do so is recoqnized under articles 21 and 22 of the Conventiot and
finally by carrying out an inquiry in cases of a systematic practice of
torture, whenever its competence to carry out such an inquiry has not been
excluded by the State party. Its main task therefore is to determine whether
individual States are complying with or have complied with their obligations
under the Convention. Its function can therefore be described as
quasi judicial.
7. The function of the Special Rapoorteur on questions relevant to torture
is completely different. He has to report to the Commission, a body composed
of government representatives, on the phenomenon of torture in general.
This is reflected in his mandate, as contained in paragraph 12 of
resolution 1987/29, where he is requested to report to the Commission On “his
activities regardinq the question of torture, includinq the occurrence and
extent of its practice, toqether with his conclusions and recommendations”.
8. In order to carry out this mandate, the Special Rapporteur approaches
individual Governments requesting information about the leqislative and
administrative measures taken to orevent the occurrence of torture and to
remedy the consequences of torture where this may have taken place.
9. In order to be able to report on the occurrence and extent of the
practice of torture, he is entitled to receive information for Governments,
intergovernmental and non—governmental organizations. This information
inevitably nearly always deals with specific cases occurring in individual
E/CN. 4/1988/17
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countries. whenever he has received credible information of this kind, he can
bring it to the attention of the Government concerned and ask for its
comments. Tn doinq so and in reportinq subsequently to the Commission, he
does not take a stand on the well—fouridedness of each and every alleqatiorn
the information received together with the comments by Governments enable him
to draw for the Coimuission a picture of the occurrence and the extent of the
practice of torture in the world. This is an important difference between the
mandate of the Committee and that of the Special Rapporteur: the Committee
has to determine whether a complaint is well—founded the Special Rapporteur
may bring alleqations to the attention of Governments and ask for their
conmients; in the light of those cowsnents and any consultations which may take
place between the representative of the Government and the Special Papporteur ,
conclusions and recorruuendations of a aeneral nature are included in the report.
10. There is, however, another, may be even more striking difference between
the mandates of the Committee and the Special Rapporteur. The Committee, like
every quasi judicial organ, is essentially passive. Apart from the competence
to start an inquiry, mentioned in article 20 of the Convention, the Committee
has to wait until a report is submitted or until a complaint is lodged before
it can carry out its function. The Special Rapporteur, however is invited “to
bear in mind the need to be able to respond effectively to credible and
reliable information that comes before him”. This provision, which is
contained also in other mandates established by the Commission, has led to the
so—called urgent action procedure. It is orecisely this provision which
underlines the essentially humanitarian character of the mechanisms
established by the Commission, which make it possible to avert a potential
violation of human riqhts by drawing the attention of the Government concerned
to a soecific case.
11. The difference between the tasks of the Committee and those of the
Special Rapporteur may also be characterized in the followine way. The
Committee must determine whether a State which has accepted specific
obligations under a treaty complies with those obligations; if not, the
Committee must establish that the State concerned has violated those
obligations; that is a matter of the establishment of State responsibility
and, in the case of an individual complaint, the classic rule of the
exhaustion of local remedies must be applied. riowever, the instrument of
thematic procedures has been developed by the Commission as a tool in the
struggle against practices which have been outlawed by the international
community and as a means to come to the rescue of potential or real victims of
such outlawed practices. Hence, the emphasis is laid on the element of
‘effectiveness” and on the adoption of preventive measures.
12. the mandates of the Committee and the Special Rapoorteur are, therefore,
complementary rather than competitive. For Governments, however, the
existence of these two separate mechanisms may imply a certain duplication of
work; this duplication should be avoided as far as possible. For example.
the periodic renorts to be submitted by States parties to the Coimnittee under
article 19 of the Convention, should also be conveyed to the
Special Rapporteur; he would then not have to approach such Governments for
information on leeislative and administrative measures durinq the interval
between the submission of reports to the ColTmlittee. It must be pointed out
aqain, however, that the way in which this information is used by the two
mechanisms is basically different. The Cormiiittee needs this information to be
E/CN. 4/1988/17
page 4
able to establish whether the State party has complied with its treaty
obligations; for the Special Rapporteur this information is essential as it
enables him to draw a qeneral Pattern of the existence of preventive measures
and, on this basis, to make recoimnendations of a Qeneral nature.
13. In view of the complementary character of the two mechanisms, the
Special Rapporteur is lookinci forward to the Committee takinq up its functions
and he is confident that fruitful co—operation will enrich both mechanisms,
since their ultimate qoal, the eradication of torture, is identical.
E/CN. 4/1988/17
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II. ACTIVITIES OF THE SPECIAL RAPPORrEUR
A. Correspondence
14. In pursuance of paragraph 8 of resolution 1981/29, the Special Rapporteur
addressed note verbales to Governments on 3 July 1987 requestinq that they
provide information on measures taken or envisaeed to prevent and/or combat
torture. The Special Rapporteur also drew attention to the importance of the
establishment of a system of periodic visits as well as traininq proqranvlles
for law enforcement and security personnel. Furthermore, he requested ceneral
information or observations in connection with his mandate.
15. In response to his request, the following Governments submitted
information: Argentina (7 December 1987), Bahrain 114 August 1987), Bulgaria
120 August 1987), Byelorussian Soviet Socialist Republic (17 september 1987),
Canada (8 September 1987), Cuba (12 September 1987), Cyprus (15 October 1987)
Greece (16 November 1987), German Democratic Republic (23 september 1987),
Guatemala (25 August 1987). Iraq (17 July 1987), Libyan Arab Jamahiriya
(12 October 1987), Mexico (23 September 1987), Netherlands (11 August 1987),
Panama (22 September 1987), Para uav (20 July 1987), Peru (25 July and
21 August 1987), Philippines (1 October 1987) • Poland (29 October 1987)
Republic of Korea (24 September 1987), sudan (19 November 1987), Trinidad
and Tobago (30 September 1987), Turkey (9 september 1987) , Ukrainian Soviet
Socialist Republic (12 November 1987), Yugoslavia 116 October 1987). The
Governments of Burma and Kenya provided information in reply to the request
sent by the special Rapporteur in July 1986.
16. As in previous years, the Special Rapporteur received numerous
allegations of the practice of torture from different sources. After
analysing them, letters with a summarized description of these alleqations
were transmitted to 29 countries for clarification. In addition, the
Special Rapporteur decided to retransmit, on 26 June 1987, allegations sent to
17 Governments in 1985 and 1986. At the time of preparation of this report,
no replies to these reminders had been received from the Governments of
Afghanistan, Burkina Faso, the Conqo, Guatemala, the Islamic Republic of Iran,
Israel, Mozambique, the Sudan, Suriname, the Syrian Arab Republic, Toqo,
Uganda, Zaire and Zimbabwe.
B. Urgent action
17. A number of requests for urgent action were received donna 1987. The
Special Rapporteur decided to bring 14 of these to the iirmiediate attention of
the respective Governments on a purely humanitarian basis, to ensure that the
right to physical and mental integrity of the individual was protected. He
also requested information on remedial measures, including those taken by the
judiciary, in case the alleqations were proved correct. Most of the
allecations concerned persons subjected to torture during interrogation while
being held incownunicado by security police.
18. Urgent appeals were sent to Governments of the following States:
(a) El Salvador (7 January and 18 september 1987) concerninq seven
agricultural workers held in incorranunicado detention, one woman arrested by
the security police durinq a public demonstration and a man captured at the
university campus by unknown individuals;
/cN. 4/198 8/1 1
paqe 6
(b) Guatemala (1 December 1987) concerning three persons alleqedly
detained and held inconifounicado in a military base;
(c) Lebanon (28 July 1987) concerning a number of people from the same
village arrested and detained by the military;
Id) Paraguay (9 January , 29 Aoril and 18 September 1987) concerninn a
radio broadcaster arrested and held incoiroiunicado by security personnel, six
coimfion criminals and four detained political leaders;
(e) Peru (1 December 1987) concerning the rearrest and possible
disappearance of one person reportedly arrested by military personnel;
If) South Africa (28 April 1987) concerning five persons held in
incommunicado detention, by South African security forces in Namibia, under
the Terrorism Act;
(q) Surinarrte (29 June 1987) concerning one person detained by the
security police;
(h) Syrian Arab Republic (29 September and 4 November 1987) cOncerninq
five persons held in custody by military intelligence personnel and four
others arrested by the internal security personnel and placed in incoirununicado
detention;
(i) Turkey (1 May 1987) concerninq a woman detained by the police for
interrogation on her husband's whereabouts
(j) Zimbabwe (27 January 1987) concernina a Person held in incommunicado
detention under the anerqency Forces Regulations.
19. In response to appeals sent in 1987, the Special Rapporteur received the
fol1owin replies;
(a) The Government of Suriname transmitted a reply by telex on
6 Auqust 1981, rejectinti all allegations that the detainee had been subjected
to any form of torture. According to this reply, the detainee had been
visited by a representative of the International Committee of the Red Cross
(ICRC) and was entitled to legal assistance;
Ib) On 17 July 1987, the Government of turkey informed the
Special Rapporteur that the detained woman had been released on 13 May 1987
and that no ccAnplaint had been made to the turkish authorities reqarding
torture. In addition, it was reiterated in the reply that “Turkish
authorities are compelled by law to coimnence an official inquiry in cases of
such complaints, as torture is cateqorically prohibited and is subject to
prosecution ”;
(c) In a letter dated 25 November 1987, the Government of South Africa
provided information on five individuals detained by the South West Africa
police, under the provisions of section 6 (1) of the Terrorism Act 83 of 1967,
and allegedly subjected to torture. AccordinQ to the Government, “inquiries
have revealed that they were neither assaulted nor psycholoqically
mistreated. All have been visited fortniahtly by macistrates and medical
E/CN. 4/1988/17
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practitioners operatinq independently. The detainees were informed of their
riaht to petition to the Cabinet of the Transitional Government concerning
either their conditions of detention or their release. No such petition was
received” p
(d) Recardino El Salvador , the Special Rapporteur was informed that
seven agricultural workers and one woman held in detention had been released
under the amnesty law. No information was provided on the alleged torture and
disappearance of a Than in september 1987 which occurred at the university
campus ;
20. The Special Rapoorteur received five replies concernino appeals
transmitted durino 1986 from Bahrain (14 Auqust 1987), El Salvador
(11 february and 7 September 1987) • paraguay (20 January 1987) and
South Africa (2 February 1987).
C. Consultations
21. Following the established practice, the special Rapporteur held
consultations in Geneva during visits in April 1 June , July, september and
December 1987. Private consultations with representatives of those
Governments which expressed the wish to meet with him were maintained. He
also met members of non—governmental organizations and private individuals who
claimed to be victims of torture.
D. On—site observations
22. On several occasions the Special Raoporteur has expressed his readiness
to travel to the territory of any member State with the consent or at the
invitation of the Government concerned for the purpose of carrying out on—site
consultations. In this connection, the Special Rapporteur held preliminary
talks in Geneva early in 1987 with representatives of ArQentina, colombia,
Peru and Tiruauay. He proposed a regional visit with the purpose of exchanginq
views with governmental authorities, focusing in particular on remedial and
preventive measures aimed at assisting in the eradication of the phenomenon of
torture. All four Governments invited the Special Rapporteur who initially
planned his visit from 6 to 18 December 1987. B'f letter dated
27 tober 1987. he formally transmitted to the above—mentioned Governments
dates and prooranm)es, which were acce Ptable to all except Peru, which
expressed a preference for the visit to take place in January 1988 in view of
the fact that, durinq the period suggested by the Special Rapc orteur, few, if
any, of the officials he wished to meet would be available.
E/CN. 4/1988/17
page 8
III . NATIONAL STANDARDS FOR CORRECTING AND/OR PREVE flING VRTURE
23. In pursuance of paraqraph 8 of the Commission resolution 1987/29, on
3 July 1987 the Special Rapoorteur addressed notes verbales to Governments
with the request that they Provide information on measures taken and/or
envisaqed to prevent and/or combat torture. Further attention was drawn to
paragraphs 2 and 6 of the same resolution pertaininq to the establishment of a
system of periodic visits and to the importance of trainina proqrarmnes for law
and security personnel.
24. In response to his request, the Special Rapporteur received information
from 25 States concerning their respective regulations designed to correct
and/or prevent torture, namely: Argentina, Bahrain, Byelorussian SSR, Canada,
Cyprus, Greece, German Democratic Republic, Guatemala, Iraq, Libyan Arab
Jamahiriya, Mexico, Netherlands, Panama, Paraguay, Peru, Philippines, P oland,
Republic of Korea, Sudan, Trinidad and tobaqo, Turkey, Ukrainian SSR,
Yugoslavia.
25. Argentine reported that torture was prohibited by the Constitution and
that article 144 of the Arqentine Penal Code had been amended by Law No. 23097
of 28 september l9M in pursuance of which:
‘Any public official who subjects individuals, lawfully or
unlawfully deprived of their freedom, to any kind of torture, shall be
punished by riqorous or ordinary imorisonment from 8 to 25 years and by
general disqualification for life, it beinq sufficient that the official
has de facto power over the victim even if the latter is not leqally in
his charge. The same penalty shall be applied to private individuals who
carry out those acts. Further, in the event that death of the victim
should ensue in consequence of the torture, a custodial penalty, rigorous
or ordinary imprisonment, will be enforced, the same provision defines
as torture not only physical suffering but also the inflictinq of mental
suffering when it is sufficiently serious (art. 1 of Law No. 23097
amending art. 144 (3) of the Argentine Penal Code). The foregoing
implies that torture is equated with the crime of murder in the Aroentine
legal order.
In addition, this law lays down severe penalties for any public officials who,
although in a position to do so, do not prevent the crime of torture from
being committed and for those who, having knowledge of such a crime, do not
report it within 24 hours. If the official in question is a doctor, the Law
makes him liable to specific disqualification from exercising his orofession
for twice as long as the orison sentence imposed. Under the Law the same
charge can be brought against a judge who, having knowledge of any such facts
by reason of his office, does not draw up the corresponding indictment or
report the matter to the competent judge within 24 hours.
26. the Special Rapporteur was informed by the Governments of Bulqaria
(20 Auqust 1987), the Bvelorussian SSR (17 September 1987), Iraq
(17 September 1987), Mexico (23 September 1987), Panama (22 September 1967),
the Sudan (19 November 1987), Prinidad and Thbago (23 september 1987) and the
Ukrainian SSR (12 November 1987) on their domestic legislation on prohibition
of torture with specific reference to their respective Constitutions. Penal
Codes and Codes of Criminal Procedure.
E/cN. 4/1988/17
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27. ck 14 Aucust 1987. the Government of Bahrain informed the Special
Rapporteur that torture was prohibited by articles 19 Id) and 20 Cd ) of the
Constitution. It also made reference to article 208 of the Penal Code and
article 218, paragraph 1 of the Code of Criminal Procedure and transcribed the
text in accordance with which the accused, or his defence counsel had the
right to present to the court complaints on torture or deqradin treatment.
28. The Government of Bulgaria made reference to the information submitted in
the past 1 reiterating its support for action aimed at proscribinq the use of
torture and other cruel, inhuman or degrading treatment or punishment and
informed the Special Rapporteur that it had ratified the Convention against
Torture and other Cruel, Inhuman or Degrading Treatment or Punishment on
1 December 1986.
29. By a note verbale of 8 september 1987, the Government of Canada made
reference inter alia to the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, the Government stated that
Canada had ratified the Convention on 24 June 1987. In order to ensure
compliance with the Convention, it had amended the Criminal Code to create a
specific offence of torture (sect. 245.4). The amendment prohibited acts of
torture committed by officials, such as peace officers, public officers and
members of the military forces, or by persons acting at the instigation of or
with the consent or acquiescence of such persons. In accordance with the
terms of the Convention, the lurisdiction to try these offences had been
extended to acts committed outside Canada. With regard to the legal
provisions governing police and security forces the Government of Canada
wished to advise the Special Rapporteur that, in addition to the above, the
use of force by police agencies was requlated by legislative, regulatory and
administrative provisions. The standards set out in those provisions met and
often exceeded those set out in the United Nations Code of Conduct for Law
Enforcement Officials.
30. On 25 August 1987, the overnment of Guatemala informed the Special
Rapporteur that on 13 August 1987 the Congress had elected by consensus the
Procurator for Human Riqhts. It may be recalled that, in accordance with
article 6 of the Act on the Human Rights Coumiission of the Congress of the
Republic. the Procurator (equivalent to an ombudsman) is a commissioner of the
Congress of the Republic for the defence of human rights which are safeguarded
by the Constitution and the international treaties and conventions acceded to
by Guatemala. He exercises his duties for a period of five years and has
legal personality, jurisidction and competence throughout the Republic; he is
the highest authority in respect to human rights matters and is not
subordinate to any organ or official. Among the most relevant of his
competences, the Procurator may “investigate any complaints concerning
violations of human riqhts submitted to him by any individual” and “promote
actions and remedies, judicial or administrative, wherever appropriate'
(art. 15 (c) and (f)). In particular, article 17 establishes that the
Procurator “shall take steps to ensure that fundamental rights, the exercise
of which has not been expressly restricted, are fully guaranteed durina a
state of emergency ...“.
E/CN. 4/1988/17
page 10
31. The Special Rapporteur took special note of the information submitted by
the Government of the Republic of Korea . In addition to the legal safeguards
stated in the Constitution and other internal legislation, the Government
stated that an Ad Hoc Committee had been established in 1987 for the
protection of human rights under the direction of the Prime Minister. The
Committee conducted a study regarding legal, institutional and other aspects
of human rights violations, and made recommendations with a view to improving
the legal and institutional safeguards against human rights violations. tn
addition, Human Rights Counselling Offices had been set up in all District
Prosecutors Offices and their branches throughout the country. Those Offices
were established to deal with cases involving human rights violations with
regard to compensation for victims of torture incidents.
Article 2 of the National Compensation Act Liability for Redress of
Damages, stated that “when public officials inflict damages on other persons
intentionally or negligently in the course of performing their official
duties, in violation of laws or decrees ,.. the State or local autonomous
governments shall redress the damages”.
32. On 11 August 1987, the Government of the Netherlands informed the Special
Rapporteur that it was finalizing its preparations for the ratification of the
Convention against Torture, which was expected to take place in the near
future. The Government also stated in the report of the Netherlands to the
Human Rights Committee regarding article 7 of the International Covenant on
Civil and Political Rights, that the new feature of the revised Constitution
of the Netherlands is the inclusion of the right to inviolability of the
person in article 11. Restrictions on this right may only be introduced by
or pursuant to statutory regulations. Additional article VII allows the
legislative branch a certain amount of time for the enactment of this
statutory regulation.
33. On 20 July 1987, the Government of Paraguay reported that article 65 of
chapter V of the Constitution entitled “Concerning individual guarantees”
warns that the inhabitants of the Republic against certain acts, including as
follows:
“No one shall be subjected to torture or to cruel or inhuman
treatment. The prison system shall be organized in suitable, salubrious
and clean institutions, and it shall seek to promote the social
rehabilitation of the prisoner, by a comprehensive treatment to be
determined by the law.”
The Government also states that “proceedings have been instituted against
persons responsible for security and public order in cases when they have
perpetrated abuses of authority resulting in infringements of the
aforementioned provision of the Constitution”.
34. The Government of Peru transmitted the text of Law No. 24700, enacted
on 24 June 1987, on “Rules for the conduct of the police investigation,
proceedings and trial of crimes committed for terrorist ends.” According to
this law:
“when a person is arrested or denounced for the crime of terrorism,
the police authority, the relatives of the person arrested or the
commissions on human rights shall notify the matter immediately and in
writing to the competent magistrate, who shall present himself forthwith
at the place which will be an official detention centre. The police shall
E/CN. 4/1988/l i
paQe 11
notify in writine the person indicated by the detainee, the provincial
maqistrate shall assume direct responsibility for the investigation in
defence of the legality, human riahts and interests protected by the
law; the members of the police forces shall participate and act in the
investigations ordered by the maqistrate. The participation of the
defence counsel in each and every one of the investigations conducted is
essential. The right to a defence may not be waived. If, for any
reason, the defence counsel fails to respond to two consecutive
suimnonses, the representative of the Public Prosecutor's Department
ap ints another defence counsel forthwith. In the event that it is
essential for the elucidation of the crime, the provincial magistrate
shall request the examininci magistrate to authorize the inconvnunication
of the detained person for a period not exceedina 10 days. The
incommunication does not preclude conferences in private between the
defence counsel and the detained person. Such conferences may not be
prohibited by the police, in any circumstances. Neither do they require
any prior authorization, by notifying the provincial magistrate. Once
the police investigation is concluded, the Public Prosecutor's Department
shall report to the examininq magistrate within a period of 24 hours, if
it considers the act convlained of to constitute an offence.”
35. By a note verbale dated 8 september 1987. the Government of Turkey made
reference to information submitted to the Special Rapporteur on
16 septeither 1985, on 26 November 1985 and on 16 September 1986 and stressed
the importance of training law enforcement personnel. In that regard the
Government stated:
“In Turkey the parliament, the Government, judicial authorities, the
press and public opinion are sensitive to the subject of ill—treatment.
Recognizing the fact that an insufficient level of education is one of
the root causes of isolated acts of ill—treatment, the Turkish Government
has taken measures with a view to increasing the educational level of the
police forces. The aim of the new educational measures is to increase
the sensitivity of the personnel towards fundamental human rights and
freedoms, and thus to promote respect for these concepts. To this
effect, courses on ‘Relations with citizens, laws regarding
constitutional rights, the Criminal Code and disciplinary regulations'
are offered to students. As to the issue of identifying the offence and
the suspect and to that of handinq over the criminals to judiciary
authorities, courses entitled ct—the—spot investigation, prosecution,
interrogation and interroqative techniques and psychology of the
criminal' are offered with a view to enabling police officers to work
with scientific methods”.
36. Reaardinq training progranunes for law enforcement and security personnel,
the Governments of Cyprus, Greece and the Philippines also made specific
references. In this connection the Government of Cyprus informed the Special
Rapporteur that police recruits were underaoing “courses on law, in particular
criminal law and procedure, which lasted about one academic year; also
regular refresher courses lasting about 10 weeks were held. Furthermore, the
Police Regulations before the House of Representatives contained a provision
that any complaint aoainst a member of the police for ill—treatment of a
person under detention or during his trial would be examined by a special
committee on complaints”.
F/ eN. 4/1988/17
page 12
37. The Government of the Philippines stated that the following measures had
been taken by the Government to prevent and/or combat torture;
the study of human rights as an integral and indispensable part Of
the education and training orogrammes of all military and police units.
service schools and academies, including the Philippine Military Academy,
in compliance with OP Memorandum Order No. 20 dated 4 july 1986; [ the
organization of] seminars, jointly with the De Partment of Justice, for
rankinq military/Integrated National Police officers and prosecuting
fiscals on subjects pertaining to human rights, such as arrest, search
and seizure; custodial investigation, filing and prosecution of cases,
handlinq and administration of persons in custody, and other related
subjects; ... troop information and education campaigns for all military
and police personnel with emphasis on respect for human rights; [ the
establishment of the] Special Action Cormoittee (SAC) at General
Headquarters, Armed Forces of the Philippines, and at the Headquarters of
Major Services and Regional Unified Commands to act prcmrntly On issues
and complaints that are related to human rights violations. SAC actions
include .. . the ,nonitorinq, investigation, and reporting of human rights
violations'.
38. In his first report the Special Rapporteur referred to the 1983
United States Export Mministration Regulation under which export licences for
“specially designed implements of torture” could be granted. By letter of
22 Aoril 1987 the F bited States Government informed the Special Papporteur
that the Export Administration Regulations had been amended as of
10 April 1987. Paragraph 375.14 dealing with the export licence requirements
for crime control and detection commodities now contains the following
provision; “Application for validated export licences for ‘specially designed
implements of torture' will be denied'. The Special Rapporteur was also
informed that under the previous legislation no export licences for “specially
designed implements of torture” had been granted.
39. It has been brought to the Special Rapporteur's attention that in Some
federal States the competence to enact legislation and to decide upon
administrative regulations with regard to law enforcement personnel and the
régime of places of detention lies with the constituent States. The
authorities of the constituent States are often t fully aware of the
developments which have taken place at the international level.
Consequently, implementation of the various instruments adopted within the
context of the United Nations in such cases may not comply fully with the
standards which might be expected. In this respect, it might be useful to
remind the Governments concerned that a similar situation is covered by
article 41 (h) of the 1951 Convention relating to the Status of Refugees,
where it is said that:
with respect to those articles of this Convention that come within
the legislative jurisdiction of constituent States, provinces or cantons
which are not, under the constitutional system of the federation, bound
to take legislative action, the Federal Government shall bring such
articles with a favourable recoimnendation to the notice of the
approoriate authorities of States, provinces or cantons at the earliest
possible moment”.
E/cN. 4/1988/17
Daqe 13
This provision cniqht find analogous application in cases where the cc plete
prohibition of torture must be given effect. In this context it is also
interesting to note the provision of article 41 ( C) of the same Convention,
which requests a federal State party to supply a statement of the law and
oractice of the federation and its constituent units in regard to any
particular provision of the Convention showinq the extent to which effect has
been given to that provision by legislative or other action, the Special
Rapoorteur would appreciate it if federal Governments were to provide him with
information not only about what has been done to implement the prohibition of
torture at the federal level but also at the level of the constituent units.
E/CN. 4/1988/17
page 14
IV. WRTURE AND OTHER CRUf L, INHUMAN OR DB3RADING TREATh3ENT OR PUNISHMENT
40. In his first report to the Commission (E/CN.4/1986/15), the Special
Rapoorteur made a distinction between two main types of torture: physical
torture on the one hand and psycholocical or mental torture on the other
(para. 118); he continued b giving a list of methods of torture
(para. 119). He cautioned, however, that the two main types of torture were
interrelated and that, ultim tely, both had physical and psychological
effects. He also cautioned that the list of methods of torture was not
exhaustive.
41. In another part of that same report the EpeciaTi Rapporteur saiä that
there was a ‘ T grey area” between torture (proper) and other treatment or
punishment; he submitted that he had to take certain cases of cruel, inhuman
or degrading treatment or punishment into account since they could,in a
further analysis, constitute an act of torture (para. 23). Recently, various
situations have been brought to the attention of the Special Rapnorteur, which
can be said to belong to that “grey area”. They are described below.
A. Corporal punishment
42. The Penal codes of some countries recognize corporal punishment,
e.g. floqqing or amputations , as a sanction against violators of the law.
First of all; it must be sait that the fact that these sanctions are accepted
under domestic law does not pecessarily make them “lawful sanctions” in the
sense of article 1 of the Convention against Torture. tn this respect
reference may be made to the opinion of the Ruman Rights CorrEnittee that “the
prohibition (of art. 7 of th e Covenant on Civil and Political Rights) most
extend to corporal punishment. including excessive chastisement as an
educational or disciplinary 1 neasure”. 1/ It is international law and not
domestic law which ultimately determines whether a certain practice may be
reqarded as “lawful”.
43. The Special Rapporteur s had consultations with the representative of a
State where these forms oe corporal punishment are recognized under domestic
law and are actually applied. He has welcomed these consultations and
expresses the hope that they will be continued, and that the representatives
of other States which have comparable legal provisions will be in a position
to do likewise. The said representative told the Special Rapporteur that
such forms of punishment were based upon religious prescriptions; moreover,
within the socio—cultural context of his country, those sanctions were
effective and must, therefore, be deemed indispensable; besides, they were
also generally accepted by th People as a whole. It was also pointed out
that such sanctions, though severe and therefore applied only in exceptional
circumstances, were milder than the death penalty, since the convicted
person's life was not affected. Capital punishment, however, was not
forbidden under international law.
44. The fact that hiahly authoritative religious books recoanize or even
leqalize certain institutionS and instruments does not necessarily mean that
those institutions and instruments are valid for all places and all times.
Slavery may be taken as an eX flPie: aithou jb sTiavery was accepteä Dy
virtually all traditional religions, it is now generally recognized that it is
not coi patible with the inherent dignity of man; consequently it is outlawed
and seen as one of the most serious violations of human rights. In a similar
E/cN. 4/1988/17
page 15
way, an opinia juris has developed to the effect that the infliction of severe
physical or mental pain is irreconcilable with the required respect for man's
physical and mental intecirity, even in cases where sanctions in themselves are
fully appropriate and even called for.
B. Inhuman prison conditions
45. In various instances the Special Rapporteur's attention has been drawn to
the extremely poor prison conditions prevalent in some countries, either in
qeneral or with respect to certain cateqories of orisoners. Inhuman prison
conditions may indeed lead to severe suffering in an aggravated form,
especially when they are the consequence of a deliberate policy, and therefore
constitute torture in the proper sense of the word. Severe suffering may
however also be the result of negligence or extreme lack of care on the part
of the authorities. Since in that case the sufferinq is not intentionally
inflicted it does not come under the definition of torture Proper;
nevertheless such inhuman prison conditions can easily constitute “inhuman or
deoradinq treatment” which would imply a violation by a State of its
obliqations under international law as well.
C. 1enerally applied harsh treatment
46. what has-been said above about inhuman prison conditions is also relevant
to a large extent for harsh treatment of detainees. ?then harsh treatment is
applied deliberately to certain cateqories of detainees or when there is a
clear intention to inflict pain on an inmate of a place of detention, this may
be a form of torture. when the r qime in such places in general is extremely
harsh, for example when it takes the form of indiscriminate beating, it
constitutes inhuman or deqradinq treatment.
D. Prolonged stay on death row
47. It is not uncommon that persons who have been sentenced to death have to
wait for long periods before they know whether the sentence will be carried
out or not. If this delay is the consequence of appeal procedures or
requests for pardon, it is inevitahle if the uncertainty, however, lasts
several years (which is far from unusual), the psychological effect may be
equated with severe mental sufferino, often resultjnq in serious physical
complaints. Here, again, it may be asked whether such a situation is
reconcilable with the required respect for Than's dignity and physical and
mental integrity.
E. Detention of minors together with adults
48. The attention of the Special Rapporteur has been drawn to the fact that
in some countries minors (sometimes of a very young a c ie) who are suspected of
or convicted for common crimes are detained together with adults. It is not
unusual for the other prison inmates to exploit these minors mercilessly,
sometimes even physically (i.e. sexually). Although this practice of
detaining minors toqether with adults is already at odds with the generally
accepted principle of rehabilitation of convicted persons, and is in
contravention of article 19, paragraphs 2 Ib) and 3, of the International
Covenant on Civil and Political Rights, it may also lead to severe physical
and mental suffering for the minors concerned.
* * *
B/eN. 4/1988/17
paqe 16
49. Although these cateqories of treatment of detainees are to a certain
extent entirely different in character, they all seem to belong to the qrey
area, refered to earlier. In some cases this treatment may constitute
torture, especially since torture also includes the infliction of pain or
suffering with the acquiescence of a public official. In other cases it may
be mote appropriate to speak of cruel, inhuman or deqradinq treatment or
punishment. For this reason the Special Bapoorteur feels that, whenever he
is provided with reliable information dea linq with such treatment of
detainees, he is acting within the terms of his mandate if he brinas such
information to the attention of the Governments concerned and asks for their
coilmients. In this respect it seems worthwhile to repeat what was said about
the character of the mandate in chapter 1, namely that coiwnents by States are
needed in order to enable the Special Rapj rteur to draw a general picture of
the existence of torture and similar practices and to formulate
recommendations to prevent such practices.
E/CN. 4/1988/17
page 17
V. ANALYSIS OF INFORMATION RECEIVED BY THE SPECIAL RAPPORTEUR
ON THE PRACTICE OF TORTURE
50. The information received by the Special Rapporteur during the period
under review confirms the picture given in the two previous reports: torture
is still a widespread phenomenon. The fact that allegations keep coming in
from some countries where, after a change of r4gime, the present Government
has unequivocally stated that it will not tolerate torture any more proves how
tenacious the practice of torture is. Evidently harsh treatment of detainees,
often amounting to torture, has become a way of life in such a society and it
seems to be extremely difficult to change those patterns of behaviour. Under
such circumstances very strict retraining programmes and heavy penalties
whenever torture actually occurs are vitally necessary. Also visits to places
of detention by external experts, who can make recommendations to the
authorities after these visits, may contribute to a change of the prevalent
climate.
51. The fact that torture is still widespread is partly the result of civil
strife or internal war in a number of countries. As was pointed out in the
previous reports, such a situation easily lends itself to the practice of
torture, since respect for human life and human dignity is generally low. The
problem, however, is compounded by the fact that in many cases a state of
emergency is declared for the regions which are particularly afflicted by the
civil unrest, or in some cases for the whole country. If under such a state
of emergency article 9 of the International Covenant on Civil and Political
Rights or comparable provisions of national law are suspended, the guarantees
for the respect of the prohibition of torture from which no derogation may he
made (art. 7) are also jeopardized. Even when provisions governing national
remedies, such as habeas corpus or amparo are maintained, as was recorimiended
in the Special Rapporteur's first report (para. 42), the effectiveness of such
guarantees is often undermined since the judiciary, which has to provide those
guarantees, often has no access to places of detention in areas under a state
of emergency which are generally under military control. Therefore, people
can be kept in detention virtually indefinitely and their whereabouts can
remain unknown. These circumstances are exceptionally “well—suited” to the
practice of torture as the allegations received in a great number of cases
attest. The psychological conditions for the practice of torture may be
strengthened by the fact that insurgents also apply inhuman practices
vis—à--vis the military and other public officials and sometimes the local
population as well, although such insurgents are often indistinguishable from
that local population. Under those circumstances every person is a potential
suspect and, since he can be kept incommunicado for a considerable time,
ruthless interrogation methods can be used and very often are. Sometimes it
is even maintained that torture is inevitable and therefore pardonable, if
practised against “terrorists” in order to obtain information necessary to
save the lives of innocent people.
52. Torture, however, is generally recognized to be prohibited under all
circumstances, as is clearly and unequivocally spelt out in article 2 of the
1985 Convention against Torture. Although it serves no purpose to
underestimate the difficulties in such situations and the near impossthility
oC n aintaining the rule of law wholly intact, Governments should be
continuously aware that national security is not an aim in itself but has to
be achieved for the well—being of the people. They should therefore
constantly remind those who are primarily in charge of the task of restoring
E/CN. 4/1988/17
paqe 18
national security and internal stability that the basic human rights of the
civilian population should be scrupulously respected. ctily then can national
security and human rights, which are seemingly so often in conflict in the
situation just described, be reconciled to the best possible extent.
53. It is even less Dardonable when torture is practised to prevent civil
unrest, to extirpate all opposition and to stifle all dissent. In the former
case there is a tack of control on the side of the authorities, in the latter
case there is complete control. Here it is the Government itself which
deliberately uses torture as a means to spread terror. In this case the
possibilities for other Governments to bring pressure to bear on that
Government are much clearer. In this respect it should be recalled that the
practice of torture is not only a violation of a State's obligations under
international law towards its own subjects, but also towards the other members
of the international community, since the prohibition of torture is one of the
erqa omnes obligations of a State (see the Special Rapoorteur's second report,
paras. 35—46).
54. The picture provided by the information received by the Special
Rapporteur is, however, more diffuse and canplex than may be assumed from the
description of the situations discussed until now. Allegations also come in
with regard to countries where the circumstances mentioned above do not
prevail. Dealing with those allegations the Special Rapporteur has come to
the conclusion that there is a very close link between article 7 of the
International Covenant on Civil and Political Rights (the prohibition of
torture) and article 10. paragraph 1, which states that all persons deprived
of their liberty shall be treated with humanity and with respect for the
inherent dicinity of the human person”.
55. It is the Special Rapporteur's considered opinion that there is a sliding
scale which extends from the treatment of detainees which is not in conformity
with the provision of article 10, paraqraph 1, through inhuman or deqrading
treatment to real torture. The grey area, referred to in chapter IV, may
eventually be much larger than was depicted there, What article 10,
paragraph 1, in fact says is that detainees are human beings like those who
detain them, that they have the same human dignity and that they are not a
despicable group of persons removed from society but are only temporarily (and
in some cases indefinitely) deprived of their liberty and consequently cannot
move around in that societn places of detention, however, are as much part
of that society as other institutions and the same basic rules of law apply to
them.
56. This viewpoint, authoritatively recoanized by the international
community, nevertheless calls for a change of attitude since for centuries
detainees have been seen as outcasts, as inferior persons havinQ no rights or
privileges. Many orison regimes basically still reflect that view and it is
precisely in those places that torture is alleged to take place on an
incidental, or sometimes even on a regular basis. As long as this attitude of
mind prevails, even if only a few preventive factors which are normally
present are removed, that may be sufficient for non—humanitarian treatment to
become inhuman treatment or even torture.
57. It is for this reason that the Special Rapporteur has emphasized in his
Drevious reports the importance of trainina and of re—education prOqralTunes for
law enforcement and security personnel. He has learned with satisfaction from
E/CN. 4/1988/17
paqe 19
information conveyed to him that in several countries, in particular in
countries where torture was regularly practised under a previous r6qime. new
traininc proqrammes have been introduced (this information is reflected in
chap. III). It is, however, necessary for all Governments to evaluate their
training programmes periodically in order to see whether they are still in
conformity with the precepts of articles 7 and 10, paragraph 1, of the
International Covenant on Civil and Political Rights. For, in order to
eradicate torture, it is not sufficient merely to prohibit it in a penal code
in which it is sanctioned by severe penalties. Such provisions, thouqh
necessary, place torture in a separate category of serious crimes and nobody,
and certainly not a person who is entrusted with the enforcement of the law,
sees himself easily in the role of a serious offender of the jaw, But
experience has shown that torture very often is the last phase of a long
process, starting with the neqation of the detainees human dignity. This
process, ending with physical abuse, has its oriqin however in the mind and it
is there that preventive measures have to start.
58. The Special Rapporteur also received information about measures taken
against victims of torture who have publicly testified about what has happened
to them and against persons who have taken up their cause. It seems to be
quite conmon for detainees on their release to have to sign a statement or to
declare that they will not make any counents on the way they were treated
during detention. If they nevertheless denounce what happened to then, they
are sometimes rearrested. In other cases representatives of human rights
organizations who publicly expose torture practices have been the victims of
harassment or have even been arrested. In some cases lawyers who have lodged
a complaint about torture with the authorities on behalf of their clients have
themselves been arrested or debarred, It qoes without saying that such
practices are in flagrant contravention of the spirit of the prohibition of
torture, People who declare themselves to be the victims of torture should
under all circumstances be able to lodge a complaint and to obtain redress, as
is also provided in article 14 of the Convention against Torture. Even if, as
is sometimes maintained, these denunciations are wade for political ITotives to
eubarrass the authorities 1 each formally lodged ccmplaint should be the
subject of an independent judicial inquiry.
E/CN. 4/1988/17
page 20
VI. PREVENTIVE ME1ISUR S
59. In his first report (para. 8) the Special Rapporteur stated that as long
as there were situations in which human beings found themselves in the
absolute power of other human beings, such situations would be conducive to
the practice of torture. He continued by saying that as such situations would
always occur, it was highly important to develop a system with built—in checks
and balances. In this chapter some note detailed attention will be qiven to
such a system which also could be described as a network of preventive
measures.
60. However, first one remark of a note general nature must be made. In a
reply from a Government received by the Special Rapporteur it was submitted
that some of the preventive measures reconmiended by him in his second report
were not necessary in the case of that particular country, since the existing
legislative and judicial guarantees to obtain redress in case of abuse of
power by governmental officials were fully satisfactory. A clear distinction,
however, must be made between preventive measures and repressive measures.
Both are equally necessary but they are not interchangeable since their
respective function is different. The availability of means to obtain redress
and the existence of legal provisions which make it possible to punish
severely persons who have practised torture deal with the consequences of
torture once it has occurred, preventive measures have the function of
forestalling the occurrence of torture. The punishing of torture with severe
sentences may have a preventive effect also but its main function is
repressive. Since situations which are conducive to torture will exist in any
society, the main emphasis should be on measures which are geared to the
prevention of torture, Such measures can never be replaced by repressive
measures which do nothing to correct the situations which make torture
possible.
61. In his second rep,rt, the Special Papoorteur drew attention to a system
of periodic visits by a group of experts to places of detention or
imprisonment, along the lines of the proposal contained in the draft optional
protocol to the (then draft) convention against torture, submitted by the
Government of Costa Rica in 1980. In 1985, the Commission on Human Riqhts
decided to postpone consideration of that proposal, since a similar idea was
under discussion in the context of the Council of Europe. Concurrently it
recoinuended that other interested regions where a consensus existed should
consider the possibility of preparing draft conventions based on the same
concept.
62. In the meantime the deliberations in the Council of Europe have led to a
successful result. On 26 June 1987, the European Convention on the Prevention
of Torture and Inhuman and Degrading Treatment and Punishment was adopted and
on 26 November 1987 it was opened for signature. The Special I apporteur has
been informed that the conclusion of a comparable convention in the context of
the Organization of American States is under consideration.
63. Although the Special Rapporteur remains of the opinion that the existence
of regional conventions would not necessarily stand in the way of the
conclusion of a world—wide convention to which States which are subject to
such a system of visits under a regional system could also become parties, he
feels that the present noment may not be propitious for the conclusion of such
a world—wide treaty, since a great nuiter of States may be preoccupied with
regional efforts.
• E/CN.4/1988/ 17
page 21
64. There is no reason, however, to leave the idea of a system of visits
completely to regional arrangements and not to pursue it at a world—wide level
at the same tine. As a provisional measure consideration night be given to
requesting the Secretariat to establish a panel of experts within the context
of the programme of advisory services: each Government, which feels that it
is in a position to do so . could, through the Centre for Human Rights, invite
members of the panel to visit its country and inspect places of detention,
preferably on a periodic basis. Some experience could be gained from such a
system of visits, which would be of great value when the idea of a world—wide
convention is eventually taken up again. The mandate and terms of reference
for each visiting team could be drawn up by the country concerned and the
Centre for Human Rights each time, which would assure a maximum of flexibility.
65. The importance of a system of visits as a preventive measure against
torture and similar practices can hardly be exaggerated, even if provisionally
it is realized only on a purely voluntary basis. It would be a highly
effective form of advisory service, rendered on the spot. Pbr this reason it
should remain on the agenda of the United Nations even if, for the time being.
it is not given a conventional basis.
66. In this context it is also useful to remind Governments of the
possibility of granting admission to I RC teams to places of detention and
imprisonment. The important contribution afforded by such visits to a greater
respect for the human dignity of detainees in past and present needs no
further illustration.
67. It is generally known that torture is most common when people are held in
incommunicado detention. Since torture is practised in secrecy this secrecy
is best protected by incommunicado detention. Abolishment by law of all
possibilities for incoircounicado detention therefore would be a highly
effective preventive measure. In this context, mention should also be made of
the fact that countries which do not allow incoimnunicado detention under their
national legislation sometimes nevertheless recognize that a person under
arrest may be locked up for a certain period (e.g. 24 or 48 hours) in a police
station before the case is brought to the attention of the judicial
authorities. Great care must also be taken durinq this limited period to
ensure that the physical and mental integrity of the detainee is not harmed.
68. preventive effects may also be expected from a medical examination of
detainees iunediately after their arrest. If a detainee is certified to be in
sound condition at the moment of his arrest, it will be more difficult to
explain why his health has deteriorated during his period of detention. Such
a measure is also in conformity with Rule 24 of the Standard Minimum Rules for
the treathent of prisoners adopted by the First United Nations Congress on the
Prevention of Crime and the Treatnent of Offenders in 1955 which states that
the medical officer (of the institution) shall see and examine every prisoner
as soon as possible after his admission. In order to be really effective this
examination should take place not only in official prisons but in all places
where people are detained, for example for interrogation purposes.
69. Quite frequently people die during detention and their death is alleged
to be due to torture. In other cases the bodies of persons who have
disappeared but who have allegedly been kept by some State entity are found
for example in the street. In all these cases a formal autopsy should be held
E/cN. 4/1988/17
page 22
in the presence of persons chosen by the relatives of the deceased, the
drafting of a set of minimum rules on autopsy with a particular reference to
the phenomenon of torture could be envisaged.
70. In another part of this report (para. 57) the Special Rapporteur has
again stressed the importance of training progranines for police and security
personnel. It suffices to refer to this paragraph here.
71. In his second report, the Special Rapporteur recommended the
establishment of an independent oirt,udsman—type authority which could receive
complaints about administrative abuses, including torture. The establishment
of such an institution would be a combination of a repressive and a preventive
measure, the long—term effect would certainly be preventive if its repressive
function was seen to be effective. In order to be effective, the authority
should be easily accessible, people should be able to consult it unnoticed,
the threshold of aporoach should be as low as possible and formalities should
be minimal.
72. A network of preventive measures of this kind or of a related nature
(recougnended in previous reports) to be taken on the national level may well
be the most meaningful contribution to the eradication of the phenomenon of
torture.
E/CW. 4/ 1988/17
page 23
VII. CONCLUSIONS AND RECOMMENDATIONS
73. The crusade against torture within the United Nations has been under way
now since 9 December 1915, when the General Assently, by consensus, adopted
the Declaration on the Protection of All Persons from Being Subjected to
Torture and Other Cruel. Inhuman or Degrading Treatment or Punishment.
Important instrumental and institutional steps have been talcen since then.
Reference may be made to the adoption of the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment on 10 December 1984,
the appointment of a Special Rapporteur of the Coifflission on Human Rights on
questions relevant to torture on 22 May 1985, the entry into force of the
Convention on 26 June 1987 and the election of the Committee against Torture,
to be established under that Convention, on 26 November 1987.
74. Of more importance, however, is the question whether this crusade has led
to concrete results, Certainly one of the consequences is that there has been
a general awakening to the phenomenon of torture; the Governments as well as
the peoples of this world universally condemn torture as one of the most
heinous violations of basic human rights; all over the world non—governmental
groups have sprung up which deal specifically with the subject of torture;
numerous symposia have been organized to discuss ways and means to eradicate
this evil.
75. But in spite of all this, allegations of torture have continued to come
in; their nurther does not show a tendency to decrease. New techniques of
torture — sometimes horrifyingly sophisticated — are invented, new instruments
for torture — sometimes specifically desiqned not to leave physical marks —
are developed. The cries of pain and anquish from the victims of torture are
still louder than the cries of indignation at the practice of torture,
although the former often cannot be heard.
76. Row can this remarkable discrepancy between legal opinion ( opinio iuris )
and practice be explained, a discrepancy which is not unknown in the field of
human rights in general but is all the more remarkable with respect to
torture, since here the practice is never justified by those who are alleced
to have practised it but is flatly denied.
77. The Special Rapporteur feels that one of the reasons is that torture
generally is not an isolated phenomenon which can be set aside and attacked
separately. Torture is intricately linked to other violations of human rights
and is only an excessive outgrowth of such other violations. This is very
clear in the case of situations of civil strife and civil war where
allegations of torture are invariably accompanied by allegations of
involuntary disappearances and wilful killings. Often an allegation contains
the simple but gruesome message that the severely mutilated body of a person
who disappeared on such and such a date has been found.
78. However, in other cases torture is largely the concomitant of other human
rights violations and of the absence of the rule of law. That does not mean
that torture cannot occur in countries where the rule of law is securely
guaranteed. As the Special Rapporteur said in his previous reports, no State
may think it is wholly irmnune from torture, since torture may occur in any
situation where man has corrplete power over his fellow man. However, whenever
there are effective and speedy methods of redress, such cases of torture will
remain isolated. But where the rule of law starts to decline torture can
E/CN. 4/1988/17
page 24
easily occur. It is specifically for this reason that the Special Rapoorteur
placed the phenomenon of torture in a wider context in the chapter dealing
with the analysis of the information received.
79, this simple but elemental truth is worded in a masterful way in the first
sentence of the preamble of the Universal Declaration of Human Riqhts:
‘Whereas recognition of the inherent dignity and of the equal and inalienable
rights of all members of the human family [ including political opponents and
suspected and convicted criminalsi is the foundation of freedom, justice and
peace in the world”. When these words are taken lightly, the barriers against
the practice of torture are wafer—thin; however, when they are taken
seriously, the crusade against torture can never be a crusade aqainst the
symptoms, but has to acquire the character of a crusade against the root
causes of torture and these root causes can be perceived in coapletely
different places from the rooms where torture is actually practised.
80. The recommendations which the Special Rapporteur has made throughout the
report must — in order to be effective — therefore be seen in this wider
context; really effective measures against torture have the same starting
point as the rule of law in general. the rule of law can take various forms
in various circumstances (there is no single model for the rule of law), but
it can never allow for torture since that is the complete and total negation
of the inherent dignity and the equal and inalienable rights of all members of
the human family.
81. The Special Rapporteur has made a number of recommendations throughout
the present report. So me of those recommendations are snumiarized below and
should be read together with those which have been made in previous reports
and which cannot be repeated here in toto .
(a) Since many alleged cases of torture are reported to have taken place
during incommunicado detention, every effort should be made to declare
incommunicado detention illeqal;
(b) Each arrested Derson should be handed over without delay to the
competent judge, who should decide on the legality of his arrest immediately
and allow him to see a lawyer;
(c) Every person under arrest should undergo a medical examination as
soon as possible after being arrested;
(d) Whenever a person dies while in detention, an autopsy should be held
in the presence of a representative of his relatives. Minimum rules on
autopsy with special reference to the phenomenon of torture should be drafted;
(e) Places of detention should be regularly inspected by external
exoerts. A system of inspection on a national level should preferably be
combined with periodic visits by international exDerts. To this end a panel
of experts should be established within the context of the proqraane of
advisory services of the Centre for Human Rights. Governments of States not
parties to a convention establishing a periodic system of visits could make
use of the facility offered by the Centre;
E/CN. 4/19 88/ 17
paqe 25
(f) Training progranmies for law enforcement and security personnel
should reflect the view that detained persons are entitled to all the rights
contained in the tbiversal Declaration of Human Riqhts and other legal
instruments adopted by the international cogmunity. Instruction progranunes
and manuals on interrogation techniques should contain strict and explicit
rules with regard to the prohibition of torture and other cruel, inhuman or
degradinq treatment.
Note
1/ Report of the Human Rights Committee, Official Records of the
General. Assembly, t hirty—seventh Session, Supplement No. 40 (A/37/40),
annex V 1 para. 2.
