Background

Article 2, paragraph 1 of the International Covenant on Civil and Political Rights (ICCPR) obliges State parties to respect and to ensure to all individuals within their territory and subject to their jurisdiction the rights recognised within the Covenant, including the non-derogable prohibition of torture or cruel, inhuman or degrading treatment or punishment established by its article 7.

Additionally, article 18 of the ICCPR establishes a non-derogable right of everyone to have or adopt a religion or belief of their choice, and to manifest their religion or belief in worship, observance, practice, and teaching. Paragraph 2 of the same article prohibits any coercion that would impair anyone’s freedom to have or adopt a religion or belief of their choice, while paragraph 3 establishes that limitations on manifestation of religion or belief may only be subject to such limitations as are ‘prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.’ These provisions of the ICCPR reflect those laid down in articles 2, 5, and 18 of the 1948 Universal Declaration of Human Rights.

In accordance with general comment 22 of the Human Rights Committee, persons subject to certain legitimate constraints, such as prisoners, continue to enjoy their right to manifest their religion or belief to the fullest extent possible compatible with the specific nature of the constraint.

Regrettably, violations of all three rights are often closely interwoven, in a variety of ways which merit interrogation and documentation. Areas of intersection include, but are not limited to, (i) State-sanctioned criminalization and punishment of religion or belief minorities, or persons on grounds of their thought, conscience, religion or belief; (ii) denial of the right to manifest one’s religion or belief to persons in detention; (iii) refoulement of individuals seeking international protection on the basis of religious or belief-based persecution; (iv) violations arising in the context of dual or traditional legal systems; and (v) the scope of State obligations as they relate to the actions of non-State actors vis-a-vis their freedom of religion or belief obligations.

Despite these and several other important interactions between the rights, there remains a dearth of authoritative legal and policy guidance to clarify the scope of state obligations in respect of them.

Objectives

This report seeks to illuminate the lived realities and consequences of the inter-relatedness, interdependence, and indivisibility of the right to freedom of religion or belief and the prohibition of torture and other cruel, inhuman or degrading treatment or punishment.

Based thereon, it will contribute to the report’s recommendations to, inter alia, States, National Human Rights Institutions (NHRIs), National Preventive Mechanisms (NPMs), international organisations in relation to the legal and policy implications which arise in this context, and civil society.

While the obligation of non-refoulement is relevant to the questions raised by this thematic area, kindly note that for reasons of scope, they will be addressed in a separate forthcoming report.

Key questions and types of input/comments sought

a) For States, National Human Rights Institutions, and National Preventive Mechanisms

1. How do – or how might - the rights to non-discrimination on the basis of religion or belief, and freedom of religion or belief, inform the legal threshold(s) for establishing torture and other cruel, inhuman or degrading treatment in the domestic legal order? Please cite any relevant jurisprudence.

2. What legal and policy frameworks ensure the practical and effective enjoyment of non-discrimination based on religion or belief, and freedom of religion or belief, of persons in detention? What are some of the challenges that arise and how are they managed?

3. How is data gathered in respect of the religion or belief identities of individuals in the domestic criminal justice system? How does the analysis of this data inform policy and practice?

4. What is the role of National Preventive Mechanisms and other relevant domestic actors in relation to the above? What preventive measures are in place, and how is effectiveness defined and monitored?

b) For civil society organisations, religious or belief groups, human rights defenders, and academics

1. What discriminatory patterns of violations of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment, can be observed with respect to religion or belief minorities or groups?

2. How do – or how might - the rights to non-discrimination on the basis of religion or belief, and the rights to freedom of religion or belief, inform the legal threshold(s) for establishing torture and other cruel, inhuman or degrading treatment in the domestic legal order? Please cite any relevant jurisprudence as necessary.

3. What (a) negative trends and/or (b) best practices can be identified regarding the right to freedom of religion or belief of persons in detention?

4. How and to what extent do – or could – States collaborate with religious or belief minorities or groups in ensuring their obligations to respect, protect, and fulfil the prohibition of torture or other cruel, inhuman or degrading treatment or punishment?

How inputs will be used?

Inputs will be used with desk research to inform the structure and content of the thematic report. It is important to note that submissions may be referenced, quoted, and/or published with the report and on the OHCHR website and thus become publicly accessible unless it is explicitly stated that this is not desirable.Please include confidentiality requests on the first page of submissions.