禁止酷刑委员会审议英国的报告（部分翻译）

2013年5月8日

禁止酷刑委员会今天结束了对英国提交的关于该国如何履行《经济、社会及文化权利国际公约》相关规定的第五次定期报告的审议。

Introducing the report of the United Kingdom, Mark Sweeney, Director of the Law, Rights and International Directorate, Ministry of Justice, said that there could never be any justification for torture and the United Kingdom had in place a strong system of clear guidance, Ministerial oversight and legal scrutiny in respect of human rights and many of the requirements of the Convention against Torture. The Justice and Security Act 2013 improved both judicial scrutiny and Parliamentary oversight of the security and intelligence agencies, while the Government continued to pursue the goals of the Torture Prevention Strategy 2011-2015, namely ensuring that a legal framework was in place and enforced, developing political will and capacity to eradicate torture, and giving organizations on the ground skills to ensure its eradication.

Committee Experts asked a number of questions concerning the military operations overseas, the publishing of the Gibson Report, and the status of the moratorium on the transfer of detainees in Afghanistan. The delegation was asked about the intention to remove from its legislation any permission to torture and to comment on the fact that the Justice and Security Act 2013 allowed the Government to rely on secret evidence in civil cases, which could be a result of torture. Other issues raised by the Committee included conditions in detention and prison overcrowding, the process of reforming the human rights legislation and developing new Bill of Rights which was feared would weaken protection of human rights in the country, plans to amend the age of criminal responsibility, repatriation of Tamil asylum seekers and the accountability of private military and security companies for human rights violations.

Responding to questions and comments raised by the Committee members on Tuesday, 7 May and today, the delegation stressed that the definition of torture in domestic legislation was broader than in the Convention and that torture within the meaning of the Optional Protocol to the Convention against Torture would never be lawful under the laws of the United Kingdom. The evidence obtained under torture was not admissible in the United Kingdom’s courts and it was up to a judge to exclude evidence he or she believed was obtained under torture. The United Kingdom would maintain a moratorium on the transfer of United Kingdom captured detainees in Afghanistan if it judged there remained a real risk at the point of transfer of serous mistreatment and torture. Concerning allegations of serious misconduct of British troops in Iraq, the delegation said that the Government had created two statutory public inquires, the Baha Mousa Inquiry which had reported in 2011 and implementation of its recommendations was ongoing, and the Al-Sweady Inquiry which began taking evidence in March 2013.

The delegation of the United Kingdom consisted of representatives from the Ministry of Justice, Home Office, Ministry of Defence, Department for Justice Northern Ireland Administration, Scotland Government, Foreign and Commonwealth Office and the Permanent Mission of the United Kingdom to the United Nations Office at Geneva.

The next public meeting of the Committee will be at 10 a.m. on Friday, 10 May when it is scheduled to meet with States parties.

Report of Greece

The fifth periodic report of the United Kingdom can be read via the following link (CAT/C/GBR/5).

Presentation of the Report of the United Kingdom

MARK SWEENEY, Director of the Law, Rights and International Directorate, Ministry of Justice, introducing the report, reiterated the strong commitment of the United Kingdom to the United Nations and the role it played in the promotion and protection of human rights. The United Kingdom remained keen to play a leading part in the United Nations’ process for enhancing human rights protection around the world. Its bid to join the Human Rights Council and the seriousness with which it had approached its Universal Periodic Review last year were evidence of this. There could never be any justification for torture, said Mr. Sweeny, adding that few countries had a stronger system of clear guidance, Ministerial oversight and legal scrutiny in respect of human rights and many of the requirements of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Regarding the United Kingdom’s procedures for deporting terrorist suspects where diplomatic concerns were raised about their safety on return to their home country, the United Kingdom believed that diplomatic assurances were a valid way of achieving the aim of protecting the public and would not deport a terrorist suspect where there were substantial grounds for believing that there was a real risk the individual would face torture or inhuman or degrading treatment and punishment. In 2010, Sir Peter Gibson had been appointed to chair an independent inquiry looking into serious allegations made about the role the United Kingdom might have played in the past treatment of detainees held by other countries and in the alleged illegal transfer of detainees from one country to another. Parliament had recently passed the Justice and Security Act 2013 which improved both judicial scrutiny and Parliamentary oversight of the security and intelligence agencies. It strengthened the powers of the parliamentary Intelligence and Security Committee by broadening and deepening its oversight functions and making it more independent from the Executive.

Mr. Sweeney further said that the devolved administrations had competence in a range of areas relevant to the implementation of the Convention and added that in Scotland, the European Convention of Human Rights was firmly embedded within the Scotland Act. The Scottish Government took a distinctive approach in the areas of criminal justice, treatment of offenders and addressing violence against women, where a strong legislative framework combined with significant investment was being directed towards eradicating it from Scotland’s communities. The National Assembly for Wales had passed the Rights of Children and Young Persons Measure which placed a legal duty on the Welsh Government to have due regard to the Convention on the Rights of the Child and protect children against torture, sale and other forms of exploitation. New policy initiatives in Northern Ireland included the reshaping of the Criminal Justice System, tackling the issues that undermined human rights such as delays in the system, reform of the prison services, putting human rights at the core and the transformed police service. The Overseas Territories were constitutionally not part of the United Kingdom, but the Government was working with them to ensure that international standards were met, including those set by the Convention against Torture. Last year was the first anniversary of the Foreign Office Torture Prevention Strategy 2011-2015 and the United Kingdom continued to pursue its three goals: ensuring that legal framework were in place and enforced, developing political will and capacity to eradicate torture, and giving organizations on the ground skills to ensure its eradication.

Questions by Committee Experts

ALESSIO BRUNI, Committee Expert and Rapporteur on the Report of the United Kingdom, took up the issue of the United Kingdom’s military operations overseas and, noting the interruption in the detainee inquiry in January 2012, asked about the Sir Gibson’s report in this regard and when its publication would take place. Further, he inquired into the completion of the criminal investigation in two Libyan cases, the commitment of the Government to begin new detainee inquiries and to remove from its legislation any permission to torture, including under the executive orders or when permitted in foreign law. Military operations overseas, including in Afghanistan, were undertaken because legitimate authorities did not have control over parts of the territory, but since the United Kingdom Government refused jurisdiction in those territories, there was an open question of which authority was responsible for the implementation of the Convention against Torture. The transfer of detainees to Afghanistan was suspended at the moment because some of them were at risk of being tortured upon return and the Expert wondered how long this moratorium would be in place and what could the United Kingdom Government do to ensure their safety upon return. Mr. Bruni further asked the delegation to explain under which circumstances the right to solicitor granted under the Terrorism Act 2011 was limited and to comment on the fact that the Justice and Security Act 2013 allowed the Government to rely on secret evidence in civil rights cases, which could be a result of torture; since it was secret, it could not be challenged in courts.

Concerning conditions in places of detention, the delegation was asked whether the Government was looking into alternative measures to detention and the use of non-custodial services for minor offences in order to reduce overcrowding in prisons, and to describe pain-inducing techniques still practiced, which was particularly important as the age of criminal responsibility in England and Wales was 10 years of age. On the issue of non-refoulement, Mr. Bruni noted that many Tamils returning to Sri Lanka after the end of conflict were subjected to torture and asked whether the moratorium on their return was still in force. In 2011, the United Kingdom Government had established a Commission on the Bill of Rights to explore the possibility of reforming human rights legislation, but consensus on the issue had not been reached; the idea of the new Bill of Rights was not very popular among civil society and non-governmental organizations, while Scotland and Wales preferred to have the European Convention on Human Rights embedded in their legislation. The feeling was that the new Bill of Rights would weaken human rights protection, including protection against torture and Mr. Bruni asked the delegation about the current position of the Government on the issue.

GEORGE TUGUSHI, Committee Expert and Rapporteur on the Report of the United Kingdom, asked the delegation to expand upon the legal protection from torture and to comment on the access of a detainee to a doctor, particularly in Scotland. The Committee had received many complaints about the conditions in prisons in the United Kingdom, both concerning the overcrowding and the quality of services provided to detainees; were there plans to draw a comprehensive strategy to ensure that imprisonment was a measure of last resort, to promote the use of non-custodial measures and to accelerate the rates of prison release? Could the delegation comment on the reports about the detention of children in degrading conditions at Heathrow airport? The United Kingdom authorities failed to provide the Committee with relevant statistics concerning the allegations, cases, prosecutions and convictions for acts of torture and ill treatment, which prevented the Committee from obtaining a full picture about the incidence of torture in the country.

Mr. Tugushi further asked the delegation about the prison reform in Northern Ireland and when some tangible results could be seen; about plans to regard as juveniles persons deprived of liberty who were under the age of 17 and provide them with adequate protection; to comment on the detention of children as young as 11 in England and Wales, who committed no crime but were described by the police as disturbed and agitated; to explain the follow-up measures on the reported 70 per cent increase in the use of restraining measures against juvenile detainees; and to inform the Committee about the plans to set limits on the duration of detention of irregular migrants and the specific training of police officers and other measures to ensure identification of victims of trafficking.

Like in many other countries, overcrowding in prisons seemed to be a problem affecting all the areas of the United Kingdom, and an Expert noted the need for a comprehensive strategy and policies to address the issue, revolving around alternative measures to detention; what were specific measures envisaged by the United Kingdom to reduce overcrowding? Was the delegation aware about human rights violations committed by its troops in Iraq and what was being done to address the issue?

Another Expert inquired about private military and security companies based on the United Kingdom’s territory, when they were considered an agent of the State and what was being done concerning allegations of human rights violations committed by them. Regarding the issue of diplomatic assurances, an Expert asked why the United Kingdom saw them as a success in repatriation cases, considering that they could also be a loophole, and also inquired about the post-return monitoring practices employed by the United Kingdom. Could the delegation elaborate on the number of cases of alleged torture of Tamils removed from the United Kingdom and returned to Sri Lanka since the end of conflict in 2009 and how all the findings concerning torture were fed back into repatriation and return policy?

Other issues taken up by the Committee Experts included the lack of the law prohibiting corporal punishment; the reasons explaining the rise in the number of female detainees in Scotland and measures undertaken to address the phenomenon; the situation of the elderly in institutions and what was being done to prevent their maltreatment; and the one year prison sentence for the perpetrator of torture and ill treatment committed by a British corporal in Iraq and whether it was commensurate with the crime.

CLAUDIO GROSSMAN, Committee Chairperson, asked the delegation to clarify the process of the reform of the Human Rights Act, and to inform the Committee about the status of ratification of the Convention against Enforced Disappearances, plans to amend the age of criminal responsibility and the budget allocated for training of the police force in the use of tasers. What were the plans on the reform of the refugee determination process and was the Justice and Security Act 2013 compatible with the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment? The issue of non-refoulement and diplomatic assurances had become clear over time and it was proven that a number of countries was using them to justify repatriation of people to places and countries where they were at real risk of torture.

ALESSIO BRUNI, Committee Expert and Rapporteur on the Report of the United Kingdom, said that the legislation and other administrative measures in the United Kingdom were clear on the prohibition of torture, but there was always an escape clause; for example, the Intelligence Act 1994 contained in section 7 a provision that a person was not liable under criminal or civil law for committing any criminal act outside of the British islands as long as it was authorised by the Secretary of State.

GEORGE TUGUSHI, Committee Expert and Rapporteur on the Report of the United Kingdom, asked about plans to adopt strict legislation prohibiting use of tasers and other electric discharge weapons in the United Kingdom and intentions concerning the total prohibition of corporal punishment.

Responses by the Delegation

The people and the Government of the United Kingdom still needed to be convinced of the value of individual petition mechanisms to the treaty bodies, since those were not courts and could not award any damages. Concerning the question of extraterritorial application of the Convention, the United Kingdom’s position was that the scope of each article must be considered on its own terms.

The laws of the United Kingdom stemmed from common law and prohibitions tended to be broad; exceptions to such prohibitions were created for specific groups of people. The definition of torture was broader than in the Convention and the domestic definition of torture was not qualified by the intention of the infliction of pain. The Criminal Justice Act 1988 provided for defence for those accused of committing torture, but not justification of torture per se. For official acting under the United Kingdom law, any justification or excuse for torture must be found in the United Kingdom’s laws. Torture within the meaning of the Optional Protocol to the Convention against Torture would never be lawful under the United Kingdom’s laws and the orders of the superior officer to commit torture could never be used as justification or excuse by British military personnel. Whatever the territorial scope of the Convention was, all British military personnel were subject to the laws of the United Kingdom.

The Justice and Security Act 2007 provided for trials without jury in specified situations and this was necessary because of the situation in Northern Ireland. The provisions of the Act required renewal at two-year intervals by the Secretary of State. Non-jury trials were held in limited circumstances. The Government of the United Kingdom stood firmly against torture and other cruel, inhumane and degrading treatment. Parliament had approved the Justice and Security Act 2013 which allowed the use of closed material proceedings in civil court, where evidence was highly security sensitive and which would otherwise be excluded from the court proceedings. The Act was compatible with the European Convention on Human Rights. Evidence obtained under torture was not admissible in the United Kingdom’s courts and it was up to a judge to exclude evidence if he or she believed that it was obtained under torture.

Concerning questions raised by the Committee Experts on the alleged human rights violations committed by private military and security companies, the United Kingdom did not use private companies for military operations. As a leading buyer of private security services, the Government promoted compliance with the International Code of Conduct for Private Security Services, which set out a high level of human rights standards for signatory companies. The United Kingdom would maintain a moratorium on the transfer of United Kingdom captured detainees in Afghanistan if it judged there remained a real risk at the point of transfer of serous mistreatment and torture. Where an allegation was made of abuse or unlawful killing which was alleged to have taken place during the period when the United Kingdom forces operated in Iraq, the matter would be referred to the Iraq Historic Allegation Team, whose investigations remained ongoing. The Government had created two statutory public inquires under the Inquiries Act 2005 into allegations of serious misconduct in Iraq: the Baha Mousa Inquiry had reported in 2011 and implementation of its recommendations was ongoing, while the Al-Sweady Inquiry had begun taking evidence in March 2013.

Turning to questions and comments related to the human rights framework in the United Kingdom, the delegation reiterated the commitment to the European Convention of Human Rights and said that the rights contained therein continued to be enshrined in the law of the United Kingdom. In establishing the Commission on a Bill of Rights, the intention had never been to dilute the protection of human rights in the country, but rather to create a United Kingdom Bill of Rights that incorporated or built on the obligations under the European Convention, ensure that those rights were enshrined in United Kingdom law and protect and extend liberties. The national preventive mechanism for the United Kingdom was composed of 18 public bodies and there were no plans to seek specific cuts to funding for this mechanism. The United Kingdom remained committed to reporting on the prospect of signature and ratification of the International Convention for the Protection of All Persons from Enforced Disappearance by the time of the United Kingdom’s mid-term report under the Universal Periodic Review in mid-2014.

Committee Experts expressed concern about the detention of asylum seekers under fast track arrangements and the delegation noted that the majority were processed through a non-detention process. The Government recognized the importance of ensuring that potential victims of torture were identified within asylum procedures and provision was made in rule 35 of the Detention Centre Rules in relation to this; application of the rule 35 was excluded from short-term detention centres. Decisions on whether someone was a victim of trafficking rested with specialist trained Home Office case workers in individual case working areas; if someone was already detained as a potential victim of trafficking, their case would be referred back to the relevant specialist to reach a decision on the matter. Unaccompanied children were detained only in exceptional circumstances while alternative arrangements for their care were made. An Independent Monitoring Board report for Heathrow in 2012 had noted that the holding room remained unsuitable for anything other than a very brief period of detention and inappropriate for holding children or for overnight use; a number of projects to upgrade the rooms had been initiated.

The Government had no plans to change the age of criminal responsibility in England and Wales from 10 as children that age were old enough to differentiate between bad behaviour and serious wrongdoing. No child should ever be subjected to violence or abuse and any punishment that constituted violence or abuse was unlawful. The United Kingdom Government did not wish to criminalize parents for giving their child a mild smack. Concerning the situation of elderly in institutions, the delegation said that no-one should suffer abuse and neglect in care homes and there were no excuses for failing to keep people in homes safe or not treating them with kindness, respect and dignity. The United Kingdom did not operate any programme of compensation for victims of torture, but was a regular contributor to the United Nations Voluntary Fund for Victims of Torture and the single biggest donor to the Optional Protocol’s Special Fund.

On high reoffending rates among youth, the delegation said that almost half of those released from custody reoffended within a year and the costs of reoffending for the national economy were very high. The reforms would transform the way in which offenders were rehabilitated in the community through a new focus on life management and mentoring support. Seventy-one per cent of juvenile offenders released from custody went on to reoffend within a year and the costs of custody were huge. The plans for the future of youth custody aimed to establish a system of Secure Colleges and place education at the centre of efforts to rehabilitate serious and persistent youth offenders. Reducing overcrowding and reducing the number of prisoners held in overcrowded accommodation was a strategic aim of the Government, which would take time to implement. An inquiry had been set up into historical institutional abuse to look into the abuse in the Magdalen laundries and it would report back by January 2016. A Commission on Women Offenders had been established and had reported to the Scottish Government in April last year; the implementation of the recommendations was ongoing.

The Gibson Inquiry Report on detainee inquiry had been submitted in June 2012 and had identified themes and issues that might merit further examination by a future inquiry. Regarding the Consolidated Guidance to Intelligence Officers and Service Personnel, and section 7 of the Intelligence Service Act 1994, the delegation reiterated the United Kingdom’s position on torture: it did not participate in, solicit, encourage or condone the use of torture and cruel, inhumane or degrading treatment. The Guidance was clear that in cases where an official had a knowledge or belief that torture would occur, Ministers must be informed.

Several members of the Committee asked about returns to Sri Lanka and the current position of the United Kingdom was supported by the European Court of Human Right that not every Tamil required protection. The Government was not enforcing the return of Sri Lankan failed asylum seekers and all applications for asylum were considered on their own merit and took into account the up to date country situation. Assurances in individual cases were the result of careful and detailed discussions endorsed at the highest levels of Government with countries with which the United Kingdom had working bilateral relations. There were also arrangements put in place, often including monitoring by a local human rights body, to ensure that the assurances could be independently verified. The terms of assurances must be such to ensure that the person returned was not subjected to treatment contrary to Article 3; must be given in good faith; there must be a sound objective basis for believing that the assurances would be fulfilled; and the fulfilment of the assurances must be capable of being verified.

Follow up Questions and Comments by the Committee

ALESSIO BRUNI, Committee Expert and Rapporteur on the Report of the United Kingdom, referring to the position of the United Kingdom on Article 22, said that the challenge for the United Kingdom was to confront consistency of its domestic legislation with international law. Who was responsible for the implementation of the Convention against Torture in the territories subjected to the United Kingdom’s military operation? Concerning the delegation’s statement on the level of risk involved in return, Mr. Bruni stressed that Article 2 or 3 of the Convention did not qualify the level of risk of torture in places of return.

GEORGE TUGUSHI, Committee Expert and Rapporteur on the Report of the United Kingdom, commenting on the firm position of the United Kingdom Government which did not recognize the competence of the Committee to receive individual petitions, expressed hope that the United Kingdom would consider acceptance of Article 22 and that the acceptance of the individual petition mechanism would send an important message to the international movement to prevent torture. Mr. Tugushi said that the detention of juveniles suffering from mental health issue was fundamentally wrong and they should be immediately referred to a mental health institution rather than held in a police station, regardless of how brief the stay.

Other Experts commented on the lack of willingness by the Government to criminalize mild slaps and noted that criminalizing corporal punishment was about setting standards in parenting and teaching parents and children about dignity and the value of non-violence. It was important to include young people in the transitional justice process and create reconciliation across generations. Also, they asked further clarifications concerning returns to Sri Lanka and the information available on post-removal torture of Tamils; the status of preventive measures concerning troubles in Northern Ireland; reassurance that diplomatic assurances were met; and the use of Habeas Corpus in fast track detention cases.

CLAUDIO GROSSMAN, Committee Chairperson, explained why the Committee needed to ask certain questions, such as those related to accountability of private military and security companies, compensation schemes for victims of torture, or the training manual of investigative personnel.

Responses by the Delegation

Concerning the individual petitioning mechanism, the delegation said that the effective implementation of international treaties obligations was the best way to ensure performance and for the moment the United Kingdom did not see the value of individual petitions to this Committee. This issue would be kept under review. On the implementation of articles of the Convention on Torture and its criminalization in the United Kingdom law, the delegation said that the domestic definition of torture was wider than the definition in the Convention and was not qualified by reference to the circumstances. The United Kingdom did not believe that there were loopholes in its legislation allowing torture. All United Kingdom service personnel and civilians subject to service were subject to the criminal law on England and Wales wherever in the world they were.

It was not a matter for the Government of the United Kingdom to determine responsibility of the implementation of the Convention on Afghan territory. The intelligence services operated in specific situations and Section 7 of the Intelligence Act gave powers to the Secretary of State to authorise operations that would be illegal under the law of the United Kingdom, under appropriate oversight. The United Kingdom did not participate in or condone acts of torture, cruel and inhuman or degrading treatment. The use of tasers was for individual police forces but the Government of the United Kingdom had no role in increasing the number of officers using tasers. Elected Police Commissioners would have an important oversight role.

Restraining in the youth custody system should only be used as a last resort and young people should be debriefed after incidents to enable them to discuss what happened and to better understand behaviours that led to the use of restraints. In most cases, trials for serious criminal offences would be carried out in the presence of a jury; in Northern Ireland, the legislation set up a number of circumstances in which non-jury trials could take place; this method of trial did not have any impact on the right of appeal. There was going to be a further review of rule 35 within the asylum procedures in the United Kingdom. In response to the questions related to diplomatic assurances, the delegation said that there was no question whatsoever of modifying the legal obligations of the United Kingdom under the article 3 of the Convention against Torture domestically and internationally.

Closing Remarks

MARK SWEENEY, Director of the Law, Rights and International Directorate, Ministry of Justice of the United Kingdom, reiterated the importance of a dialogue with all stakeholders and said that there were institutional means of continuing the conversation with the Committee against Torture.

CLAUDIO GROSSMAN, Committee Chairperson, noted the spirit of cooperation of the United Kingdom’s delegation and stressed the importance of face-to-face dialogue which the current financial situation might put in jeopardy.
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