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Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Part I Substantive Articles, Art.10 Training of Personnel

Giuliana Monina

From: The United Nations Convention Against Torture and its Optional Protocol: A Commentary (2nd Edition)

Edited By: Manfred Nowak, Moritz Birk, Giuliana Monina

Content type:
Book content
Product:
Oxford Scholarly Authorities on International Law [OSAIL]
Series:
Oxford Commentaries on International Law
Published in print:
19 December 2019
ISBN:
9780198846178

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 20 March 2023

Subject(s):
Torture — Imprisonment — Treaties, interpretation

(p. 309) Article 10  Training of Personnel

  1. 1.  Each State Party shall ensure that education and information regarding the prohibition against torture are fully included in the training of law enforcement personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment.

  2. 2.  Each State Party shall include this prohibition in the rules or instructions issued in regard to the duties and functions of any such persons.

1.  Introduction

1  While Articles 4 to 9 deal with the obligation of States parties to criminalize torture and to bring perpetrators of torture to justice before domestic courts, Articles 10 to 13 contain the most important provisions for the prevention of torture and other forms of ill-treatment. Criminal law, of course, also has a preventive effect, but the obligations of States to ensure that the relevant personnel receive proper training, that interrogation methods and prison rules are regularly reviewed in relation to international minimum standards for the treatment of detainees and prison conditions, that prison directors, chiefs of police, and military commanders ex officio investigate any complaint or suspicion of torture by officials under their command, are at the core of torture prevention. If all the rules contained in these four Articles were carefully applied by States parties, torture would no longer exist and States would not even have to resort to conducting criminal trials against perpetrators of torture or to providing rehabilitation measures for victims of torture. Scholars, Amnesty International (AI),1 and other NGOs have developed comprehensive programmes and highly effective action plans for the prevention of torture which have found their way into the respective provisions of the CAT and OP. (p. 310) The fact that torture continues to be widely or even systematically practised in many States in the world is not due to a lack of knowledge or material resources, but only to a lack of political will and commitment.

2  Measures aimed at the prevention of torture necessarily contribute to the prevention of other forms of cruel, inhuman or degrading treatment or punishment. By virtue of Article 16, all obligations contained in Articles 10 to 13, therefore, equally apply to torture and other forms of ill treatment. Since both conducts are absolutely prohibited under international law and are difficult to distinguish in practice, it simply would not make sense to establish such a distinction for purely preventive obligations, such as the training of personnel, review of interrogation and prison rules, or the investigation of suspected cases of excessive use of force by police or prison staff.

3  In many countries, personnel involved in the custody, interrogation, or treatment of any individual subjected to any form of arrest, detention, or imprisonment are poorly educated, receive low salaries, and are not well respected in society. At the same time, there is a high expectation that the police should solve criminal cases quickly, if possible by producing a confession from the suspected criminal. Similarly, prison directors are expected to maintain discipline among detainees, prevent escapes and prison riots, and ensure proper rehabilitation of prisoners without adequate training, salaries, and staff. In order to deal effectively and at the same time in a manner respectful of human rights with situations of highly complex organized crime, States have an obligation to organize their security, law enforcement, and prison apparatus in a professional manner. Rather than reducing or privatizing their security personnel, States must ensure that the number and quality of their staff must correspond to the actual needs of fulfilling the human right to personal security, as laid down in Article 9 CCPR. To ensure that human beings can live in a society without the constant fear of being a target of violent crime is one of the most noble and fundamental human rights obligations of Governments. A high level of internal security depends on many factors, including social coherence and stability. But a security for personnel is a conditio sine qua non for ensuring the human right to personal security. The professionalism of the security apparatus depends on its technical equipment, the number of staff, their visibility, acceptance by the population at large, and their education and training.

4  Human rights education is as important for personnel as training in using firearms and other technical equipment. The absolute prohibition of torture and other forms of ill-treatment is one of the most important components of a proper human rights education. A criminal investigation police officer interrogating a person suspected of having committed a criminal offence must understand that using torture for extracting a quick confession is not only unethical and a serious violation of human rights, but also unprofessional as well as inefficient and counterproductive.2 A proper training should convey a twofold message: first, that, in the long run, the use of torture and ill-treatment does not make us safer, but less safe, because it undermines, with the quasi-approval of the State, the most fundamental principle of how human beings should behave towards each other, namely the principle of human dignity; second, that non-coercive investigation mechanisms, such as the investigative interviewing methods, are proven to be more efficient, because they provide more accurate and reliable information, are more likely to stand the (p. 311) admissibility test in a legal proceeding, and will ultimately increase the public’s confidence in the law enforcement services.3

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

5  Declaration (9 December 1975)4

Article 5

The training of law enforcement personnel and of other public officials who may be responsible for persons deprived of their liberty shall ensure that full account is taken of the prohibition against torture and other cruel, inhuman or degrading treatment or punishment. This prohibition shall also, where appropriate, be included in such general rules or instructions as are issued in regard to the duties and functions of anyone who may be involved in the custody or treatment of such persons.

6  Original Swedish Draft (18 January 1978)5

Article 5

  1. 1.  Each State party shall ensure that education and information regarding the prohibition against torture and other cruel, inhuman or degrading treatment or punishment are fully included in the curricula of the training of law enforcement personnel and of other public officials as well as medical personnel who may be responsible for persons deprived of their liberty.

  2. 2.  Each State party shall include this prohibition in the general rules or instructions issued in regard to the duties and functions of anyone who may be involved in the custody or treatment of persons deprived of their liberty.

7  United States Draft (19 December 1978)6

Article 5

Each State Party shall ensure that education and information regarding the prohibition against torture and other cruel, inhuman or degrading treatment or punishment:

  1. 1.  is fully included in the curricula of the training of medical personnel, law enforcement personnel, and other public officials who may be involved in the custody or treatment of persons deprived of their liberty and

  2. 2.  is included in the instructions issued in regard to the duties of anyone who may be involved in the custody or treatment of persons deprived of their liberty.

8  Revised Swedish Draft (19 February 1979)7

Article 10

  1. 1.  Each State party shall ensure that education and information regarding the prohibition against torture are fully included in the training of law enforcement personnel, (p. 312) civil or military, medical personnel, public officials and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment.

  2. 2.  Each State party shall include this prohibition in the rules or instructions issued in regard to the duties and functions of any such persons.

2.2  Analysis of Working Group Discussions

9  In written comments on Article 5 of the original Swedish draft, the Spanish delegation proposed that the word ‘vocational’ be inserted in Article 5(1) before the word ‘training’. The United States submitted a separate proposal which corresponded with the Swedish draft and put more focus on the training of medical personnel. In the revised Swedish draft, the reference to cruel, inhuman or degrading treatment or punishment was deleted because the delegations had agreed to deal with this in a separate provision.8 The final version also includes ‘other persons’, ie non-State personnel.

10  The United Kingdom was of the opinion that the word ‘include’ in Article 5(2) of the original Swedish draft be replaced by ‘give effect to’.9 However, the view was expressed that the existing wording was more effective.

11  Article 10 as redrafted was adopted by consensus by the Working Group in 1979.

3.  Issues of Interpretation

3.1  Meaning of ‘personnel’ (Article 10(1))

12  The formulation of Article 10(2) and the travaux préparatoires clearly indicate that this State obligation applies to all persons who might come into contact with detainees. While Article 5 of the Declaration speaks of law enforcement personnel and ‘other public officials who may be responsible for persons deprived of their liberty’, Article 5 of the original Swedish draft added medical personnel. The revised Swedish draft further included the reference to ‘civil or military’ personnel as well as to persons involved in the interrogation of detainees. While all earlier drafts applied exclusively to public officials, the final wording of Article 10(1) goes beyond public officials in the narrow sense. It follows that States parties, such as the United States, which delegate the interrogation or custody of suspected criminals or terrorists to private security companies, shall ensure that such private security staff are also subject to proper training.10 The list of persons mentioned in the final wording of Article 10(1) is of an illustrative and non-exhaustive nature,11 and the reference to ‘any form of arrest, detention or imprisonment’ shows that all persons responsible in whatever manner or function for persons deprived of liberty shall be covered. Further, since Article 10, by virtue of the reference in Article 16, also applies to other forms of ill-treatment outside detention, the obligation to provide (p. 313) education on how to avoid cruel, inhuman or degrading treatment, for example when arresting a person, dispersing a public gathering, or quelling a riot, extends to all law enforcement personnel whether responsible for detainees or not.

13  Article 10 primarily applies to all personnel authorized to use force, i.e. police, security, intelligence, and other law enforcement personnel, whether civil or military, public or private, uniformed or without uniforms. Secondly, it applies to all persons responsible for persons deprived of their liberty, i.e. any civil, military, police, intelligence, medical, and other staff working in prisons, pre-trial detention centres, police lock-ups, psychiatric hospitals, detention centres for minors, drug addicts, aliens pending deportation, asylum seekers, or refugees, etc. In the reporting procedure, the CAT Committee attaches particular importance to the training of doctors and other medical personnel working in detention or interrogation centres, for example forensic experts, paramedical, and nursing personnel.12 One reason is that doctors may be actively involved in torture practices. But even more important is the positive role which doctors can and actually should play in detecting cases of torture by means of thorough medical examinations of every person entering or leaving any place of detention. Finally, doctors and psychiatrists play a crucial role in torture rehabilitation centres.13

14  More in general, the Committee has extended the scope of application of Article 10 to any other professionals involved in the documentation and investigation of allegations of torture and other forms of ill-treatment to ensure that every case of ill-treatment is detected and the perpetrators duly punished. Hence, in addition to medical personnel, this includes for example judges, prosecutors, and lawyers, so as to facilitate its direct invocation before and its application by domestic courts,14 but also other persons working with asylum seekers, refugees, and migrants,15 and all personnel involved in the implementation of torture victims rehabilitation programmes.16

3.2  Meaning of ‘training’, ‘education and information’ (Article 10(1))

15  The training of personnel shall convey the message that torture and other forms of ill-treatment are absolutely prohibited under all circumstances, even in times of armed conflicts, organized crime, and terrorism. Secondly, the personnel must understand that torture constitutes a serious crime which will be punished with appropriate penalties and that an order from a superior officer or a public authority may never be invoked as (p. 314) a justification of torture.17 Thirdly, personnel shall be reminded of their duty to report every case of torture and ill-treatment, whether committed by a person of equal, higher, or lower rank or function, to a judge or other independent official entrusted with the task of carrying out a proper investigation and bringing the perpetrator to justice. Finally, all respective personnel shall be provided with relevant information, education, and practical training on how to prevent torture and ill-treatment.

16  As already stressed by Burgers and Danelius, ‘this issue should not be treated with brevity or as a formality’.18 Twenty years after their well-known Handbook on the Convention against Torture had been published, experience unfortunately tells us that training, if included at all in the education curricula of relevant personnel, is still treated in many States parties as a mere formality or as a ‘soft issue’ requiring less attention than the ‘real police skills’, such as the use of firearms or self-defence techniques. Much more effort is, therefore, needed to convey the message that torture and ill-treatment have no place in a professional police force or prison system and that non-coercive measures are in the long run more efficient. Such training should include more extensive information about the international efforts to combat torture, as laid down for example in the revised Standard Minimum Rules for the Treatment of Prisoners,19 the 1979 Code of Conduct for Law Enforcement Officials,20 the 1982 Principles of Medical Ethics,21 the 1984 Safeguards Guaranteeing Protection of the Rights of those Facing the Death Penalty,22 the 1988 Body of Principles on Detention,23 the 1990 Basic Principles on the Use of Force by Law Enforcement Officials,24 the 1990 Basic Principles for the Treatment of Prisoners,25 the 1990 Rules for the Protection of Juveniles deprived of their Liberty,26 the 1992 Declaration on the Protection of all Persons from Enforced Disappearance,27 and the 2000 Istanbul Protocol.28

17  When it comes to the content of trainings, a recurring recommendation of the Committee is that States parties should systematically train all relevant staff to identify and document signs/cases of torture and ill-treatment, as well as to refer such cases to competent investigative authorities in accordance with the Istanbul Protocol.29 The Committee also stressed the need to provide specialized trainings and raise awareness on gender-specific issues, such as sexual violence against women, harmful traditional practices, and on the rights of lesbian, gay, bisexual, transgender, and intersex persons, including their rights to autonomy and physical and psychological integrity,30 and on the treatment of other vulnerable groups at risk of ill-treatment, such as children, migrants, Travellers, Roma, and others.31 The same goes for the need of specialized training on effective (p. 315) prevention, investigation, prosecutions, and punishment of acts of trafficking of human beings.32 More generally, the Committee has recommended States parties to additionally carry out public awareness campaigns, including through the media, on the prevention and prohibition of torture.33

18  Such proactive training must be included in the regular education curricula of law enforcement, interrogation, prison, and medical staff as well as in regular in-service training curricula. Normally, this has the advantage to make trainings more practically relevant.34 If torture and other forms of ill-treatment seem to be practised regularly in a country or a specific unit, the respective training needs to be reviewed and intensified.35 In general, such training courses should not only be provided by governmental agencies and police training academies, but also by relevant NGOs.36 Trainings should be conducted on a regular basis.

19  Alongside with information on the relevant human rights norms, trainings should also serve to professionalize the respective staff. A comprehensive empirical study on the effectiveness of torture prevention measures showed that trainings particularly designed to enhance professional skills and capabilities of personnel and intended to practically assist officials to do their job better is considerably more effective than trainings simply providing general information about human rights standards, which on the contrary may be perceived as ‘prescriptive and remote’ by the relevant personnel, especially police officers.37 For example, the same study shows that trainings on investigative interviewing skills play a key role in the reduction of confession-driven investigations and thus reduce the risk of torture and other forms of ill-treatment.38

20  In other words, it is important that trainings aiming at preventing torture and other forms of ill-treatment, as other human rights trainings, aim at the development of competencies at different levels, including knowledge (theory), skills, and attitudes (practice).39

21  Finally, it is important that trainings are evaluated. In this regard, the Committee has consistently emphasized that States parties should develop and implement a specific (p. 316) methodology to regularly evaluate the effectiveness and impact of such training and programmes in the reduction of cases of torture, violence, and ill-treatment.40

3.3  Meaning of ‘rules or instructions’ (Article 10(2))

21  In order to supplement and reinforce the obligation under paragraph 1, Article 10(2) requires States parties to include the prohibition of torture and other forms of ill-treatment in the rules or instructions issued in regard to the duties and functions of law enforcement, interrogation, prison, and medical staff. According to Burgers and Danelius, the authors of the Convention considered it essential that the prohibition of these practices should not be embodied only in general norms perhaps unfamiliar to many of the persons concerned, but that it should also form part of the specific rules and instructions given to those directly involved in the treatment of prisoners and detainees.41

22  Article 10(2) is based on Article 5 of the Declaration and Article 5 of the original Swedish draft which still included the word ‘general’ before ‘rules or instructions’. It follows that the prohibition of torture and ill-treatment shall be included not only in the respective training manuals, but also in both the general codes of conduct of public officials, civil or military, and in specific interrogation rules or instructions to prison guards, intelligence officers, criminal investigation police, and similar personnel in charge of persons deprived of their liberty, regardless of their rank. The incorporation of this explicit prohibition, in accordance with relevant international codes of conduct, was expected ‘to minimize the chances that individual police, prison or military personnel will commit such acts on their own initiative’ and at the same time ‘to make it highly difficult for the higher authorities to order, encourage or tolerate such practices’.42 By referring to the general and specific rules and instructions, Article 10(2) provides a link between the obligation of States parties under Article 10(1) to ensure proper training and their duty under Article 11 systematically to review their interrogation and prison rules. The travaux préparatoires of Article 11 show that the words ‘rules or instructions’ were also included in Article 11 in order to harmonize the formulation of both provisions. Article 10(2) will, therefore, also be taken into account for the interpretation of the substantive meaning of Article 11.43

3.4  Can a Violation of Article 10 be Invoked in the Individual Complaint Procedure?

23  In addition, the question arises as to whether the failure of the State party to comply with Article 10 produces victims with the right to submit an individual complaint to hold the respective State party accountable. As explained in the commentary to Article 22, a victim is a person whose human rights have been violated by a State party. Consequently, the right to submit a complaint under Article 22 only refers to violations of CAT provisions that entail subjective rights of individuals.44

24  While the Committee has already found violations of other procedural articles, such as Article 11, no such conclusion has ever been reached for individual complaints (p. 317) invoking Article 10. However, given the very similar nature of the obligations provided by Article 10 and Article 11, the fact that the Committee has already accepted that Article 11 can be invoked before it in the individual complaint procedure and amount to a violation suggests that a similar conclusion could in principle be reached also for complaints concerning Article 10.

25  This view seems to be supported by the decision in Keremedchiev v Bulgaria, where even if not finding a violation, the Committee has nevertheless accepted to pronounce itself on the merit of the Article 10 claim.45 In the end, it held that it was not in a position to make any findings because the complainant had failed to provide any arguments or information to substantiate such claims, but one could argue that already the fact that the complaint was not dismissed as inadmissible ratione personae for lack of legal standing of the victim shows that the Committee had accepted that the complainant was in principle entitled to lodge an individual application before it complaining of an Article 10 violation. In this case, the objection of an incompatibility ratione personae was also not raised by the respondent State party, who simply argued that the claim had not been substantiated by the complainant.46

26  Nevertheless, even if this conclusion is accepted, the exact scope of this State obligation will be difficult to define and several questions remain open. For example, it remains unclear whether the failure of a State party to include the prohibition of torture in the training of staff at a particular prison in clear violation of Article 10 could constitute a legitimate subject of complaint by every detainee of this prison or only by detainees who have been tortured; and whether the victim would have to prove that the lack of training was the decisive reason for his or her being subjected to torture.

Giuliana Monina

Footnotes:

1  AI, ‘Amnesty International’s 12-Point Programme for the Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment by Agents of the State’ AI Index ACT 40/001/2005 (2005) <https://www.amnesty.org/download/Documents/80000/act400012005en.pdf> accessed 8 December 2017.

2  Richard Carver and Lisa Handley (eds), Does Torture Prevention Work? (Liverpool University Press 2016);CTI, ‘CTI Training Tools 1/2017: Investigative Interviewing for Criminal Cases’ (2017) <https://cti2024.org/content/docs/CTI-Training_Tool_1-Final.pdf> accessed 8 December 2017.

4  GA Res 3452 (XXX) of 9 December 1975.

5  Draft Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Submitted by Sweden (1978) UN Doc E/CN.4/1285.

6  Summary by the Secretary-General in Accordance with Commission Resolution 18 (XXXIV) of the Commission on Human Rights (1978) UN Doc E/CN.4/1314.

7  Revised Text of the Substantive Parts of the Draft Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Submitted by Sweden (1979) UN Doc E/CN.4/WG.1/WP.1.

8  See Art 16 (1) CAT which explicitly refers to Art 10.

9  Summary by the Secretary-General in Accordance with Resolution 18 (XXXIV) of the Commission on Human Rights (1979) UN Doc E/CN.4/1314/Add.1.

10  J Herman Burgers and Hans Danelius, The United Nations Convention against Torture: A Handbook on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Martinus Nijhoff 1988) 142, who refer in this respect to ‘non-governmental personnel’.

11  ibid 142; Lene Wendland, A Handbook on State Obligations under the UN Convention against Torture (APT, 2002) 50.

12  Chris Ingelse, The UN Committee against Torture: An Assessment (Kluwer Law International 2001) 271, note 179; CAT, ‘Concluding Observations: Czech Republic’ (2012) UN Doc CAT/C/CZE/CO/4-5, para 18.

13  eg CAT, ‘Concluding Observations: Russia’ (2012) UN Doc CAT/C/RUS/CO/5, para 10; CAT, ‘Concluding Observations: The Philippines’ (2016) UN Doc CAT/C/PHL/CO/3, para 36.

14  eg CAT, ‘Concluding Observations: Rwanda’ (2012) UN Doc CAT/C/RWA/CO/1, para 8, but also CAT, ‘Concluding Observations: Mongolia’ (2011) UN Doc CAT/C/MNG/CO/1, para 14; CAT ‘Concluding Observations: Burkina Faso’ (2014) UN Doc CAT/C/BFA/CO/1, para 27; CAT, ‘Concluding Observations: Burundi’ (2014) UN Doc CAT/C/BDI/CO/2, para 14; CAT, ‘Concluding Observations: Kazakhstan’ (2014) UN Doc CAT/C/KAZ/CO/3, para 26.

15  For reference on asylum seekers/asylum determination procedure: eg CAT, ‘Concluding Observations: Germany’ (2011) UN Doc CAT/C/DEU/CO/5, para 29(b); CAT, ‘Concluding Observations: Albania’ (2012) UN Doc CAT/C/ALB/CO/2, para 23(c); for references to migrants and refugees: CAT, ‘Concluding Observations: Ireland’ (2011) UN Doc CAT/C/IRL/CO/1, para 30; CAT, ‘Concluding Observations: Poland’ (2013) UN Doc CAT/C/POL/CO/5-6, para 17; CAT, ‘Concluding Observations: Estonia’ (2013) UN Doc CAT/C/EST/CO/5, para 16.

16  CAT/C/PHL/CO/3 (n 13) para 36.

17  See above Art 2, 3.6.

18  Burgers and Danelius (n 10) 142.

19  GA Res 70/175 of 17 December 2015.

20  GA Res 34/169 of 17 December 1979.

21  GA Res 37/194 of 18 December 1982.

22  ECOSOC Res 1984/50.

23  GA Res 43/173 of 9 December 1988.

24  Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990.

25  GA Res 45/111 of 14 December 1990.

26  GA Res 45/113 of 14 December 1990.

27  GA Res 47/133 of 18 December 1992.

28  GA Res 55/89 of 22 February 2001.

29  eg CAT, ‘Concluding Observations: Cyprus’ (2014) UN Doc CAT/C/CYP/CO/4, para 20(c).

30  On violence against women see eg CAT, ‘Concluding Observations: Djibouti’ (2011) UN Doc CAT/C/COG/1, para 21; on the rights of LGBTI see eg CAT/C/DEU/CO/5 (n 15) para 20; CAT, ‘Concluding Observations: China’ (2016) UN Doc CAT/C/CHN/CO/5, para 55.

31  eg CAT, ‘Concluding Observations: Bulgaria’ (2011) UN Doc CAT/C/BGR/CO/4-5, para 20 (b); CAT, ‘Concluding Observations: Slovenia’ (2011) UN Doc CAT/C/SVN/CO/3, para (20)(d); CAT, ‘Concluding Observations: Turkmenistan’ (2011) UN Doc CAT/C/TKM/CO/1, para 24 (d); CAT/C/IRL/CO/1 (n 15) para 30 (e).

32  See eg CAT/C/KAZ/CO/3 (n 14) para 21; CAT, ‘Concluding Observations: Ukraine’ (2014) UN Doc CAT/C/UKR/CO/6, para 15.

33  eg CAT/C/BFA/CO/1 (n 14) para 27(c); CAT/C/CZE/CO/4-5 (n 12) para 16; CAT/C/KAZ/CO/3 (n 14) para 21; CAT, ‘Concluding Observations: Lithuania’ (2014) UN Doc CAT/C/LTU/CO/3, para 14(b); CAT, ‘Concluding Observations: former Yugoslav Republic of Macedonia’ (2015) UN Doc CAT/C/MKD/CO/3, para 18(c);

34  Walter Suntinger, ‘Police Training and International Human Rights Standards’ in Ralf Alleweldt and Guido Fickenscher (eds), The Police and International Human Rights (Springer International 2018).

35  Ingelse (n 12) 272.

36  Burgers and Da