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Recommandations on The Torture Resolution of the U.N. Commission on Human Rights

janvier 2005

[français] [français]

The Torture Resolution of the U.N. Commission on Human Rights, March/April 2005, should include the following provisions :

The Commission,

Reaffirms that the prohibition of torture and other cruel, inhuman or degrading treatment or punishment is absolute and non-derogable.

Stresses that the use of torture and other cruel, inhuman or degrading treatment or punishment is a serious violation of international law and cannot be authorized or justified under any circumstances.

Stresses that no state may expel, return ("refouler"), or extradite a person to another state where there are substantial grounds for believing that he or she would be in danger of being subjected to torture or other cruel, inhuman or degrading treatment or punishment.

Stresses also that the prohibition against such expulsion covers all possible types of transfer of custody of an individual between states.

Emphasises that states have a positive obligation to ensure that any statement that has been made as a result of torture or other cruel, inhuman or degrading treatment or punishment, whether perpetrated by or within that state or another, shall not be used or invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.

Stresses that States through their national legal systems should ensure that victims of torture and other cruel, inhuman or degrading treatment or punishment have access to effective remedies to obtain adequate reparation, including compensation, rehabilitation, restitution, satisfaction and guarantees of non repetition, and in this regard encourages the development of rehabilitation centres for victims of torture.

Explanatory note

Preface

The Coalition of International NGOs Against Torture (CINAT) works to make the worldwide movement against torture more effective.

At a time when, in the name of national security or countering terrorism, numerous States have adopted or announced measures that are incompatible with their obligations under international law, CINAT feels that it is necessary to reaffirm

(1) The absolute nature of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment ;

(2) The principle of non-refoulement which prohibits without exception the return of a person to another State where he or she faces a real risk of torture and other cruel, inhuman or degrading treatment or punishment ;

(3) The absolute prohibition of the use of evidence obtained through any kind of ill-treatment ;

(4) The right to a remedy and reparations for victims of torture and other forms of ill-treatment ;

In this document CINAT makes recommendations relating to points 1 - 4 which it believes should be reflected in the United Nations Commission on Human Rights’ resolution on torture and other cruel, inhuman or degrading treatment or punishment to be adopted during its March/April 2005 session.

- 1) Prohibition of torture and other cruel, inhuman or degrading treatment or punishment

Absolute prohibition

The prohibition of torture and other cruel, inhuman or degrading treatment or punishment is absolute under international law and therefore permits no exception. As such, freedom from torture and other forms of ill-treatment constitutes a peremptory norm of international law (jus cogens) and a non-derogable right which cannot be suspended under any circumstance, including armed conflict - whether international or internal - or in situations of public emergency, or for other reasons relating to national security.

Under the Geneva Conventions, the use of torture and ill-treatment constitutes a grave breach of humanitarian law during international armed conflicts, and a breach of common Article 3 during internal armed conflicts which give rise to universal jurisdiction. The Rome Statute lists torture and ill-treatment in its enumeration of acts which may constitute crimes against humanity. Similarly, torture and ill treatment are also considered by the Rome Statute of the International Criminal Court as a war crime in both international and non-international armed conflict.

Therefore, under no circumstances can the use of torture and cruel, inhuman or degrading treatment or punishment be authorized. In addition, States have an obligation to prevent torture and other forms of ill-treatment and an obligation to investigate, prosecute and punish those who perpetrate such acts.

Resolution

The Torture Resolution should include a clear statement that the Commission

Reaffirms that the prohibition of torture and other cruel, inhuman or degrading treatment or punishment is absolute and non-derogable.

Stresses that the use of torture and other cruel, inhuman or degrading treatment or punishment is a serious violation of international law and cannot be authorised or justified under any circumstances.

- 2) Non-Refoulement

All States are bound by the Rule of Non-Refoulement

International law absolutely prohibits states from sending a person, against his or her will, to a country where he or she faces a real risk of torture or other cruel, inhuman or degrading treatment. The risk of ill-treatment is assessed through either or both the general situation in the state or the individual circumstances of the person in question.

The general political situation in the state can, in and of itself, be sufficient to prevent return of the individual. This prohibition is referred to as the principle of "non-return" or "non-refoulement". Although it originated in the law protecting refugees, the rule of non-refoulement now applies to all individuals in all states.

The prohibition is expressly included a variety of universal and regional treaties. However, as with the Exclusionary Rule, discussed infra, non-refoulement is now recognized to be a part of the general and absolute prohibition of torture and other forms of cruel, inhuman or degrading treatment and is implicit in the general prohibition.

Though the general prohibition of torture is expressly stated in universal and regional human rights instruments, it is also a rule of customary international law and accordingly binds all states. It follows that, as part of the general customary prohibition, all states are prohibited from sending a person to face a risk of torture or other cruel, inhuman or degrading treatment, regardless of whether the state is a party to any given treaty. The Rule Applies to All Types of Transfer

Some states have resorted to unofficial transfer practices involving no formal judicial or administrative procedure, referred to as "rendition". Some states have also placed persons in the physical custody of another state while maintaining that no official transfer has taken place. States sometimes assert that the Non-Refoulement Rule does not apply to these circumstances. Human rights bodies have consistently rejected such an assertion.

The Rule Applies to Torture and other forms of Ill-treatment

As emphasized by the Special Rapporteur on Torture in his recent report to the UN General Assembly, the absolute and non-derogable prohibition under international law applies not only to torture but also to all other forms of cruel, inhuman or degrading treatment. As part of the general prohibition against torture and other forms of ill-treatment, then, the Non-Refoulement Rule applies not only to return to risk of torture, but also return to risk of other forms of cruel, inhuman or degrading treatment that do not amount to torture.

Resolution

The Torture Resolution should include a clear statement that the Commission

Stresses that no state may expel, return ("refouler"), extradite a person to another state where there are substantial grounds for believing that he or she would be in danger of being subjected to torture or other cruel, inhuman or degrading treatment or punishment.

Stresses also that the prohibition against such expulsion covers all possible types of transfer of custody of an individual between states.

- 3) Prohibition on Use of Evidence Obtained Through all forms of Ill-Treatment

All States are Bound by an Exclusionary Rule

The principle that states may not use information obtained by torture or other forms of ill-treatment, whether by their own agents or agents of other states, (the "Exclusionary Rule") is expressly stated in Article 12 of the 1975 General Assembly Declaration against Torture :

Any statement which is established to have been made as a result of torture or other cruel, inhuman or degrading treatment or punishment may not be invoked as evidence against the person concerned or against any other person in any proceedings.

It is also expressly stated in Article 15 of the UN Convention against Torture (UNCAT) :

Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.

The Exclusionary Rule is a rule of general international law binding on all states, including those that are not party to the Convention against Torture. As both the UN Human Rights Committee and the UN Committee against Torture have concluded, the Exclusionary Rule forms a part of, or is derived from, the general and absolute prohibition of torture.

Though the general prohibition of torture is consistently stated expressly in universal and regional human rights instruments, it is also a rule of customary international law and accordingly binds all states. Thus, as a part of the general prohibition of torture, the Exclusionary Rule also binds all states, regardless of whether they are a party to any treaty.

Reasons for the Exclusionary Rule

It appears in the report of the drafting Working group of the Convention against Torture that the Exclusionary Rule is based on two considerations.

First, statements made under torture are inherently unreliable ; admission of such information in proceedings, where the proceedings involve consequences for individuals, may be contrary to principles of "fair hearing".

Second, since the use of information obtained from torture in proceedings is often the reason why torture is applied in the first place, prohibiting its use serves as a disincentive to torture or ill-treatment. The Committee against Torture has also expressly applied these rationales in its work. Indeed, very recently the CAT, in the course of the examination of the fourth periodic report of the United Kingdom, considered the SIAC rule to be incompatible with UK’s obligations under CAT.

Types of Proceedings to which the Exclusionary Rule Applies

Nothing in the text of the Declaration or Convention restricts the meaning of "proceedings" to formal court proceedings. Indeed the use of the phrase "any proceedings" suggests that a broader range of processes were intended to be covered ; essentially, any formal decision-making by state officials based on any type of information.

It is submitted that the substance of both purposes previously identified would apply equally forcefully to any quasi-judicial, administrative, or informal proceedings, certainly where those proceedings involve a statutory decision by a senior government official with consequences for the liberty of individuals within the territory or jurisdiction of the state. For instance, the UN Committee against Torture has decided that the Exclusionary Rule applies to extradition proceedings.

The State has a Positive Duty to Ensure the Evidence was not obtained by all forms of ill-treatment

In P.E. v. France, a case before the UN Committee against Torture, France argued that nothing in UNCAT imposed upon it an obligation to ascertain the circumstances in which information provided by another state was obtained before using the information in its domestic extradition processes.

This implied, in part, that the person alleging that information was obtained by torture must prove the allegation. The Committee rejected the submissions of France, holding that states are obliged "to ascertain whether or not statements constituting part of the evidence of a procedure for which it is competent have been made as a result of torture."

Once the complainant alleged that statements used against him were obtained as the result of torture, "the State party had the obligation to ascertain the veracity of such allegations." The Special Rapporteur on Torture has also stated that the burden of proof of absence of coercion should be on the state where it seeks to use information against a detainee.

The Prohibition Should be Expressly Stated in Domestic Legislation

The Committee against Torture has indicated on a number of occasions that laws governing processes subject to article 15 should expressly provide for the exclusion of evidence obtained by torture : where exclusion is simply a rule developed through case law this may not provide a secure enough guarantee to satisfy the requirements of article 15.

Provisions that permit a judicial authority to assess evidence "in accordance with his innermost conviction" or allowing "the free weighing of evidence" have been found to be inadequate.

Resolution

The Torture Resolution should include a clear statement that the Commission

Emphasizes that States have a positive obligation to ensure that any statement that has been made as a result of torture or other cruel, inhuman or degrading treatment or punishment, whether perpetrated by or within that State or another, shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made ;

- 4) The Right to a Remedy and Reparations for victims of Torture and other forms of Ill-treatment.

The right to reparation for victims of torture and cruel, inhuman or degrading treatment and punishment is well-established : it is a fundamental principle of general international law that the breach of an international obligation entails the duty to afford reparation.

This principle, already recognized by the Permanent Court of International Justice, has been upheld by international jurisprudence and reaffirmed as a general rule of international law by the International Law Commission .

The right of torture victims to obtain redress for their suffering through effective remedies and adequate forms of reparation is reflected in article 14 of CAT :

Article 14

1. Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation.
2. Nothing in this article shall affect any right of the victim or other persons to compensation which may exist under national law.

However, the prohibition to commit torture is an obligation of all States under general international law, and therefore, if breached, a new international duty to afford reparation arises independent of any treaty obligation.

Under international law : "Reparation must, as far as possible, wipe-out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed".

In other words, reparation for torture must be adequate/appropriate ; that is proportional to the harm suffered and should as far as possible restore the life and dignity of the torture victim. For example, the Human Rights Committee established that although ’compensation’ may differ from country to country, adequate compensation excludes purely "symbolic" amounts of compensation.

The scope and meaning of this (secondary) obligation/right, as well as the variety of forms to redress an injury, is governed by general principles of international law.

As reflected in the UN Draft Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Grave Violations of International Human Rights and Serious Violations of Humanitarian Law, the forms that reparation may take include : restitution, compensation, rehabilitation and satisfaction and guarantees of non-repetition.

Resolution

The Torture Resolution should include a clear statement that the Commission

Stresses that national legal systems should ensure that victims of torture or other cruel, inhuman or degrading treatment or punishment have access to effective remedies to obtain adequate reparation, including compensation, rehabilitation, restitution, satisfaction and guarantees of non repetition, and in this regard encourages the development of rehabilitation centres for victims of torture ;

Geneva, 23 February 2005


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