Statement of the Special Rapporteur on Torture, Manfred Nowak to the 2nd Session of the UN Human Rights Council, Geneva, 20 September 2006

20 September 2006



Mr Chairperson, Distinguished Members and Observers of the Council,

Impunity and lack of awareness regarding the seriousness of torture

Since I assumed the mandate almost two years ago, I carried out five country missions and various other activities, in particular relating to torture in the context of counter-terrorism strategies. Although most Governments would agree with me that torture constitutes one of the most serious human rights violations and a direct attack on the dignity of the human person, I found a surprising lack of awareness among domestic law enforcement officials and politicians in this respect.

The main purpose of the United Nations Convention against Torture, which was adopted more than twenty years ago, was to strengthen the already existing absolute prohibition of torture by means of a series of preventive measures and a strong commitment of States to fight impunity. All 141 States parties to the Convention undertook the binding obligation to criminalize torture, as defined in Article 1, by creating one or more specific offences in their domestic criminal codes punishable “by appropriate penalties which take into account their grave nature”. Despite the fact that the Committee against Torture, in the reporting procedure, repeatedly reminds Governments of this particular obligation, it is astonishing that the majority of States parties has not found it necessary to take the respective legislative measures and, thereby, to convey to their law enforcement officials the message that torture actually does constitute a serious crime which can never be justified and which leads to serious consequences, i.e. long term prison sentences. This failure on the part of most legislative bodies contributes to a climate of impunity and a lack of awareness, which in turn constitutes one of the major reasons for the continuing practice of torture in many countries and regions of the world.

The findings of my recent visit to Jordan in June, illustrates this aptly. While torture is defined in the Criminal Code it is not in line with the definition of torture contained in article 1 CAT, is not treated as a significant crime but rather as a misdemeanour, and is not subject to penalties appropriate to its gravity. Indeed, in the opinion of officials, even minor disciplinary sanctions seem to be adequate and sufficient sanctions for acts amounting to torture. The heads of the security forces and of all the detention facilities I visited denied any knowledge of torture, despite having been presented with allegations substantiated by forensic medical evidence. Moreover, this provision in the Criminal Code cannot be invoked against security officers by ordinary prosecutors and courts, but rather by internal security courts, which lack transparency, independence, and impartiality.

But Jordan is by no means the exception in this regard. Let me just cite one other recent example relating to my own country, Austria. For the first time, on 31 August 2006, four Viennese policemen were convicted for an act of torture. Since the Austrian Criminal Code, like so many other countries, still does not include torture as a specific crime, the only provision applicable was maltreatment or neglect of a prisoner by a civil servant. This offence falls, however, under the category of misdemeanour and carries a maximum penalty of two years, or three years if the torture has caused grievous bodily harm or injury. In fact the four police officers were sentenced to eight and six months suspended prison terms. The judge, the prosecutor and significant parts of the public-at-large seem to consider that this extremely lenient punishment is appropriate for an act which clearly fulfils all definitional criteria of torture.

Mr. Chairperson,

Non-refoulement

The absolute prohibition of torture, particularly in the context of counter-terrorism measures remains one of my preoccupations. I continue to emphasize and stress the importance of maintaining the focus and remaining vigilant against practices that undermine the principle of non-refoulement, such as the use of diplomatic assurances, or other bilateral agreements. I express the fear that in the context on the war against terror this fundamental principle of international law is also becoming a victim.

For example, the practice of torture in Uzbekistan is systematic, as indicated in the report of my predecessor Theo van Boven’s visit to the country in 2002 (E/CN.4/2003/68/Add.2). Lending support to this finding, my mandate continues to receive serious allegations of torture by Uzbek law enforcement officials, which are regularly transmitted to the Government for clarifications and urgent action. Moreover, with respect to the events in May 2005 in Andijan, the UN High Commissioner for Human Rights reported that there is strong, consistent and credible testimony to the effect that Uzbek military and security forces committed grave human rights violations there. The fact that the Government has rejected an international inquiry into the Andijan events, independent scrutiny of the related proceedings, and that there is no internationally accepted account of the events, is deeply worrying. Against such significant, serious and credible evidence of systematic torture by law enforcement officials in Uzbekistan, I continue to find myself appealing to Governments to refrain from transferring persons to Uzbekistan.

The prohibition of torture is absolute, and States risk violating this prohibition—their obligations under international law—by transferring persons to countries where they may be at risk of torture. I reiterate that diplomatic assurances are not legally binding, undermine existing obligations of States to prohibit torture, are ineffective and unreliable in ensuring the protection of returned persons, and therefore shall not be resorted to by States.

Cruel, inhuman or degrading treatment or punishment

Staying with the theme of torture in the context of counter-terrorism measures, in my report I observe that in the aftermath of 11 September 2001 and other terrorist attacks, a number of Governments have adopted a legal position—while acknowledging the absolute nature of the prohibition on torture—that brings the absolute nature of the prohibition of cruel, inhuman or degrading treatment or punishment (CIDT) into question. In particular, it is argued that certain harsh interrogation methods falling short of the definition of torture, as contained in the Convention against Torture, might be justified for the purpose of extracting information aimed at preventing future terrorist acts that might kill many innocent people.

Whether the use of force is lawful or excessive depends on the proportionality of the force applied in a particular situation (e.g. the use of force to arrest a suspect, disperse an illegal demonstration, or control a prison riot). Disproportionate or excessive exercise of police powers amounts to CIDT and is always prohibited. But the principle of proportionality only applies in situations in which the person concerned is still in a position to use force against a law enforcement official or a third person. As soon as that person comes under the control of an officer and becomes powerless, the principle of proportionality ceases to apply, and the use of physical or mental coercion is no longer permitted. And if such coercion results in severe pain or suffering inflicted to achieve a certain purpose, it may even be considered as torture. Therefore, particularly in situations of interrogation of detainees, no proportionality test may be applied and the prohibition of cruel, inhuman or degrading treatment or punishment is equally as absolute as the prohibition of torture.

Country visits

Mr. Chairperson,

Four of my country visit reports are before the members of the Council. Before I highlight my findings, I consider it important to draw the attention of the Council to my methods of work, based upon my experiences. The aim of carrying out country visits is to see first-hand what the true practice and situation of torture and ill-treatment is: to identify gaps as well as acknowledge positive measures, to recommend ways to improve the situation, and to initiate a process of sustained constructive cooperation with the Government together with the international community and civil society in order to eradicate torture and ill-treatment. For the Special Rapporteur on the question of torture, it is axiomatic that freedom of inquiry in places of detention implies: unimpeded access, with or without prior notice, to any place where persons may be deprived of their liberty; not being subject to arbitrary time limits for carrying out my work; free movement within the facility and access to any room in order to gather information, including by use of electronic means, such as photography; having access to any detainee or staff, and the possibility of conducting confidential and private interviews; being assisted by independent medical specialists who are qualified to document and assess injuries, in accordance with the Istanbul Protocol, as well as being assisted by independent interpreters, and other staff. These terms of reference are therefore fundamental, necessary and common sense considerations that are essential to ensure an objective, impartial and independent assessment of torture and ill-treatment during country visits.

I note that a country visit can only be undertaken upon the invitation of the Government, which by itself is a statement of a country’s willingness to open up to independent and objective scrutiny and a testament to its cooperation with the international community in the area of human rights. In this regard, I commend those States that have invited me, and express my appreciation for the cooperation they have extended to me during my visits.

Georgia

For my first mission as Special Rapporteur, I undertook a visit to Georgia, including the territories of Abkhazia and South Ossetia, from 19 to 25 February 2005 (E/CN.4/2006/6/Add.3). I consider my visit to Georgia to be a model example, and once again I take this opportunity to express appreciation for the full cooperation and assistance extended by the Government. I concluded that torture persists in Georgia, perpetuated by a culture of impunity. In the territories of Abkhazia and South Ossetia I found the conditions of detention particularly of concern. Following my visit, I was informed of a number of developments in line with my preliminary recommendations, including amendments to the Criminal Code to bring the definition of torture in line with the Convention against Torture, amendments to the Criminal Procedure Code, and notably the ratification of the Optional Protocol to the Convention against Torture. These and other positive developments are clear evidence of Georgia’s commitment to eradicate torture and ill-treatment.

However, there are a number of developments in relation to my visit that I continue to remain concerned about, in particular, with problems in the exercise of basic rights of detainees and the serious conditions prevailing in Georgian prisons. These include: the high death rate of inmates, especially during the past summer months; the very high number of pre-trial detainees and the lack of alternative measures being employed; the consequent severe and growing problem of overcrowding, including of juvenile detainees; the lack of capacity of prisons to cope with the increasing numbers; and the increasing use of violence against detainees. I refer in particular to the riots in Kutaisi Prison in December 2005, as well as the incident in Prison No. 5 on 27 March 2006, when security forces entered the prison to quell a riot, resulting in the deaths of seven inmates and approximately 24 persons injured. While I appreciate the forensic reports received from the Government in relation to this event, I emphasize the need for an independent and impartial investigation.

Mongolia

From 6 to 9 June 2005, I undertook a visit to Mongolia (E/CN.4/2006/6/Add.4). I found that torture persists in police stations and pre-trial detention facilities. Indeed, in one case that I intervened in, an individual died as a result of being severely beaten in police custody shortly before my arrival to the country. I found that impunity goes unimpeded because of the absence of a definition of torture in line with the Convention, the lack of effective mechanisms to receive and investigate allegations, and a basic lack of awareness of the standards relating to the prohibition against torture on the part of prosecutors, lawyers and the judiciary. Among my most serious concerns is the situation of prisoners sentenced to the special isolation regime, where they serve 30-year sentences in virtual total isolation, and which amounts to cruel, inhuman treatment, if not torture. The total secrecy surrounding the death penalty was also of concern; I was denied any information relating to the practice. I had received serious and credible allegations in relation to the conditions on death row—prisoners held in total isolation, continuously handcuffed and shackled, and denied adequate food—which in my opinion constitute an additional punishment, causing severe suffering and which can only be qualified as torture. I regret that I was denied access to prisoners on death row, in clear violation of my terms of reference. I subsequently learned that one such individual, whom I attempted to see, had died in custody and I requested the Government to undertake a prompt and effective investigation into the circumstances surrounding his death. There is no official data available in relation to the death penalty, and families of condemned persons are not notified of the date and place of execution and do not receive the bodies for burial, a practice which amounts to inhuman treatment of the family members.

I recently received the report of the National Human Rights Commission of Mongolia on the National Inquiry on Torture. I welcome that the report was reviewed by the Parliament and that a resolution was passed to take immediate measures to follow-up on its recommendations. I was pleased to hear that my visit was able to contribute to the success of the inquiry.

Nepal

From 10 to 16 September 2005 I visited Nepal (E/CN.4/2006/6/Add.5). I am pleased to report that the Government fully cooperated and complied with the terms of reference for the visit. I found torture to be systematically practiced by the police forces and the military. In fact I received repeated and disturbingly frank admissions by senior police and military officials that torture was acceptable in some instances, and was indeed systematically practiced. I also received shocking evidence of torture and mutilation carried out by the Maoists for purposes of extortion, punishment for non-cooperation, and intimidation. Quite apart from the gap between constitutional and legal provisions to safeguard the rights of detainees and what actually happens in practice, I was deeply concerned that impunity for acts of torture is institutionalised in a system where perpetrators are merely subject to demotions, suspensions, fines, or delayed promotions, and victims may be eligible for token awards of compensation.

Since my visit, I note that a number of positive and significant developments have taken place in Nepal towards greater democratization and a resolution of the conflict. In this period of change, I offer my assistance to the Government towards the implementation of my recommendations to combat the practice of torture and ill-treatment.

People’s Republic of China

Nearly a decade after the request was made, I was pleased that a visit to the People’s Republic of China (Add.6) materialized from 21 November to 2 December 2005, including visits to Beijing, Lhasa, Tibet Autonomous Region (TAR) and Urumqi, Xinjiang Uighur Autonomous Region (XUAR).

I recall that over the last several years my predecessors and I have received a significant number of serious allegations related to torture and other forms of ill-treatment in China, which have been submitted to the Government for its comments. These have included a pattern of torture related to ethnic minorities, particularly Tibetans and Uighurs, political dissidents, human rights defenders, practitioners of Falun Gong, and members of house-church groups. These allegations continue to be documented by international human rights organizations, in respect of which I regularly transmit communications to the Government for clarifications and urgent action.

Taking into account the size and complexity of China as well as the limited duration of the mission, I acknowledge the limitations in drawing up a comprehensive set of findings and conclusions on the situation of torture and ill-treatment in China. Therefore, in addition to the information I have gathered from my visit, I have drawn upon interviews conducted beforehand, information received through the mandate’s communication procedures, as well as various non-governmental sources, to form my conclusions. I believe that the practice of torture, though on the decline – particularly in urban areas – remains widespread in China. I was particularly concerned about the continuing practice of forced re-education of persons with dissident or non-conformist opinions, aimed at changing their personality and breaking their will, both in special re-education through labour camps, regular prisons, and even in pre-trial detention facilities. Such practices, in my opinion, constitute a systematic form of inhuman and degrading treatment and are incompatible with a modern society based on a culture of human rights, democracy and the rule of law.

The Government’s willingness to acknowledge the pervasiveness of torture in the criminal justice system and various efforts undertaken in recent years at the central and regional levels to combat torture have contributed to the steady decline over recent years. However a number of factors continue to contribute to the practice, including rules of evidence that create incentives for interrogators to obtain confessions, lengthy periods in police custody without judicial oversight, and restricted rights and access of defence counsel.

I am confident that the recommendations in my report will be taken into account in the context of the Government’s efforts aimed at the eradication of torture and ill-treatment. I stand ready to assist in any way I can.

Mr. Chairperson,

With respect to these visits, in the discussion that follows, I look forward to hearing from the concerned countries any steps that have been taken to date to follow-up on my recommendations.

Upcoming visits

Since the submission of my reports, I have the pleasure of reporting to the Council on my upcoming country visits.

I will undertake a mission from 9 to 20 October to the Russian Federation, with a particular focus on the North Caucasus, including the Republics of Chechnya, Ingushetia, North Ossetia and Kabardino-Balkaria. My mission to Paraguay is expected to take place in November 2006. My mission to Sri Lanka is confirmed for the end of January 2007. Likewise, I am pleased to announce invitations to Nigeria and Togo, the visits which are expected to take place in April and June 2007, respectively. Finally, following a long-standing request, first made in 1993, I received an invitation from the Government of Indonesia for a mission in 2007.

Mr. Chairperson,

Optional Protocol to CAT

It is almost thirty years ago that Jean-Jacques Gautier, a Geneva banker dedicated to the eradication of torture, proposed a universal system of preventive visits to places of detention on the model of the visits carried out by the International Committee of the Red Cross and Red Crescent. In 1980, Costa Rica submitted a text for an Optional Protocol to the Commission on Human Rights which was based on the Gautier idea as developed by NGOs, such as the International Commission of Jurists and the then Swiss Committee against Torture, the predecessor of the Association for the Prevention of Torture. All these efforts have culminated into the Optional Protocol to the UN Convention against Torture (OPCAT), which entered into force on 22 June 2006.

The rationale of OPCAT is based on the experience that torture and ill-treatment usually takes place in isolated places of detention, where those who practice torture feel confident enough to be outside the reach of effective monitoring and accountability. Since torture is absolutely prohibited under all legal systems and moral codes of conduct worldwide, it can only function as part of a system where the colleagues and superiors of the torturers order, tolerate or at least condone such practices, and where the torture chambers are effectively shielded from outside control.

I consider that the most effective way of preventing torture therefore is to expose all places of detention to public scrutiny, and this new instrument is the most effective and innovative method for the prevention of torture and ill-treatment worldwide.

I remind States parties to CAT of their obligation under article 2 CAT to take effective measures to prevent acts of torture in any territory under their jurisdiction. Along these lines, I strongly appeal to all States to ratify the Optional Protocol as soon as possible and to establish truly independent, effective and well-resourced national prevention mechanisms with the right to carry out unannounced visits to all places of detention at any time, to conduct private interviews with all detainees and to subject them to a thorough independent medical examination.

Mr Chairperson, Distinguished Members and Observers of the Council, I thank you for your attention, and look forward to a fruitful interactive dialogue.