STATEMENT BY THE SPECIAL RAPPORTEUR ON TORTURE, Mr. Manfred Nowak TO THE 61st SESSION OF THE GENERAL ASSEMBLY

Monday, 23 October 2006

President, Distinguished Representatives and Observers,

I. Impunity and lack of awareness regarding the seriousness of torture

As I pointed out to the Human Rights Council last month, I would like to underline again to the General Assembly, my concerns relating to impunity and the lack of awareness regarding the seriousness of torture.

Since I assumed the mandate almost two years ago, after having carried out five country missions and various activities related to the mandate, I have found a surprising lack of awareness among domestic law enforcement officials and politicians that torture constitutes one of the most serious human rights violations; that it constitutes a direct attack on the dignity and integrity of the human person.

The main purpose of the United Nations Convention against Torture, adopted more than twenty years ago, was to strengthen the 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”. It is astonishing that the majority of States parties have not found it necessary to take the 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, and not merely disciplinary sanctions.

But passing laws, just like ratifying treaties, we can agree, is just the beginning, and the real commitment of States is demonstrated in their implementation. All too often have I been told by Government officials that torture is prohibited by law, though it may occur in an unfortunate isolated circumstance by an exceptionally ignorant policeman, and that the sternest measures are taken against perpetrators. And more often than not these observations are made in diplomatic circles or by high governmental officials, and seems somewhat disconnected from the realities prevailing in the police lock-ups and pre-trial detention centres. One needs only to sit down in a cell, speak with detainees in private, and obtain medical evidence. It does not take much effort to search for the truth if one wants to search for it.

In the face of allegations of torture, the absence of effective (meaning timely, independent and transparent) investigations and prosecutions of public security officials, and redress for victims commensurate with the gravity of torture, constitute the major reasons for the continuing practice of torture in many countries and regions of the world.

Torture itself, and the conditions that permit it to occur are abhorrent. I have seen what it does to people. It happens worldwide. This understandably emotive and sensitive subject also makes Governments defensive. However, for measures to be meaningful, Governments need to step up and be courageous in embracing efforts to eradicate torture.


II. Non-admissibility of evidence extracted under torture

President,

My efforts to maintain the focus on 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 remaining vigilant against all practices that seek to undermine it. In this regard, I continue to advocate against the use of diplomatic assurances to circumvent the principle of non-refoulement, and the use of secret places of detention.

In my report to the General Assembly, I also draw attention to the principle of the non-admissibility of evidence extracted by torture in article 15 of the Convention against Torture. Recent key court decisions in terrorism-related cases illustrate the increasing trend towards the use of “secret evidence”, possibly obtained by torture inflicted by foreign officials in secret places of detention, and put forward by government authorities in judicial proceedings. What is more, the onerous burden of proof to establish that such evidence was obtained under torture is placed on defendants. Such practices potentially undermine the absolute prohibition laid down in article 15. I remind States that in the light of well-founded allegations of torture, under article 15 of the Convention, the burden of proof shifts to the State to establish that evidence invoked against an individual has not been obtained under torture.

The prohibition of torture is absolute, and States risk violating this prohibition—their obligations under international law—by effectively allowing for evidence obtained under torture to be admissible in judicial proceedings.






III. Country visits

President,

Turning to my activities, the country visits I have undertaken have provided me with a rich picture of the nuances, sometimes stark, behind the theory and practice of the prohibition of torture, the real challenges that Governments sometimes face, as well as the exciting initiatives taking place at national level to eradicate torture.

In my reports to the last session of the Human Rights Council, I detailed my conclusions and recommendations of my country visits carried out in 2005 to Georgia, Mongolia, Nepal and the People’s Republic of China. I would like to take the opportunity to thank these Governments for the cooperation they have extended to me, and to the constructive dialogue that we continue to hold in the follow-up to my recommendations. It is not always easy to have to listen to criticism, but my mandate compels me to seek the best of Governments. Each of these countries should be commended for their willingness to open themselves up to objective international scrutiny for the aim of combating torture.

Jordan

I have undertaken one country visit to date in 2006, to Jordan in June, which I noted briefly in my report to the General Assembly, and orally highlighted at the Human Rights Council. I take the opportunity again to thank the Government of Jordan for the cooperation it has extended to me, and for the detailed comments it has submitted to my draft report. After these comments have been translated, I will include them in my final report which will be presented to the Human Rights Council in spring 2007. Since I have gathered surprisingly clear evidence of torture in various investigative and correctional locations, supported by unambiguous identification of the responsible officers, and taking into account the strong commitment of the Government to human rights, I am sure that every effort will be taken to implement my recommendations and to bring the individual perpetrators and their superiors to justice.

Russian Federation

As I indicated in my report to the General Assembly, I was scheduled to undertake a visit from 9 to 20 October to the Russian Federation, with a particular focus on the North Caucasus Republics of Chechnya, Ingushetia, North Ossetia, and Kabardino-Balkaria. I regret that only five days before the start of my visit, I had to announce on 4 October that I could not proceed. At a very late stage in the preparations, I was informed by the Government that certain elements of my Terms of Reference for carrying out visits to detention facilities would contravene Russian Federal legislation, particularly with respect to carrying out unannounced visits, and holding private interviews with detainees. These terms had been brought to the attention of the Government from the outset of my request; are the same terms that I drew the General Assembly’s attention to in my statement of last year, and in my report to the Council; and have governed the visits of my predecessors, as well as the visits that I have carried out to Georgia, Mongolia, Nepal, the People’s Republic of China, and Jordan. Since these issues could not be resolved prior to the visit, I unfortunately had to cancel this mission at a stage when everything had been prepared in detail. Nevertheless, I have been assured by the Government that a mutually agreeable solution will be arrived at to ensure that this important mission is carried out in the very near future.

With a tragic coincidence that marked what would have been the start of my mission, it is with profound sadness that I observe the murder of a courageous Russian journalist and human rights defender, Ms. Anna Politkovskaya, who documented the tragedy of the war in the Republic of Chechnya, and in particular who tried to shine a light on the human rights violations taking place there, including of torture and ill-treatment. I extend my sincerest condolences to her family.

Future visits

Concerning future visits, my mission to Paraguay is expected to take place from 22 to 29 November 2006. My mission to Sri Lanka is confirmed for the period from 27 January to 2 February 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, I received an invitation from the Government of Indonesia for a mission, which I hope to realize in the latter part of 2007. I convey my appreciation to those Governments for the invitations they have extended to me.


IV. Torture prevention

President,

The Special Rapporteur on Torture is one of the key mechanisms established by the United Nations towards the elimination of torture and other cruel, inhuman or degrading treatment or punishment. With a mandate that covers the globe, and the limited means at my disposal with which to carry it out, I am mindful of the practical limitations.

Given such limitations, I maintain that the best way to combat torture is to focus efforts on preventing it from taking place. For prevention to be most effective, these efforts must be carried out locally, by independent national institutions. Therefore a significant theme throughout my activities, both in terms of country visits and my advocacy work, has been promoting the ratification of the Optional Protocol to the Convention against Torture (OPCAT).

OPCAT and national preventive mechanisms

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; 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. Therefore, and from my own experiences, I consider that the most effective way of preventing torture is to expose all places of detention to public scrutiny, and this new instrument aims to do precisely that.

I take this opportunity to 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. In this spirit, 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.

Cooperation with regional organizations

Mindful of the limitations of my mandate, I further recognize that anti-torture measures and initiatives are often much more significant, timely, and responsive at the regional level, such as through judicial decisions, or regular monitoring mechanisms. In this regard, a significant part of my activities as Special Rapporteur has been devoted to seeking cooperation and building partnerships with regional human rights organizations. The substance of these activities have included advocacy of anti-torture measures, participation in meetings, workshops and trainings, exchange of information on activities and experiences, and the coordination of future activities, all with the aim of mutually reinforcing the respective human rights mechanisms.

Although cooperation with European regional organizations, such as the European Union, the Council of Europe, the Organization for Security and Cooperation in Europe, has featured large in my activities over the course of the year, I have sought to strengthen ties with the Organization of American States, having held meetings with the Assistant Secretary on Political Affairs, the Secretary of the Inter-American Commission on Human Rights and judges of the Inter-American Court of Human Rights this June in Washington D.C. I am also very pleased to announce to the General Assembly that I have been invited to participate next month in the 40th Ordinary Session of the African Commission on Human and People’s Rights, including in the NGO forum, the plenary of the Commission, consultations with the Commissioners, as well as consultations with the Follow-up Committee on the Robben Island Guidelines.

Only through the benefit of cooperation with Governments, national organizations and civil society, as well as regional human rights organizations, can the mandate of the Special Rapporteur expect to make a real contribution to the elimination of torture and ill-treatment.


V. Closing

President, Distinguished Representatives and Observers,

I thank you for your attention, and look forward to a fruitful dialogue.