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Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Part I Substantive Articles, Art.16 Cruel, Inhuman or Degrading Treatment or Punishment

Gerrit Zach, Moritz Birk

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

Edited By: Manfred Nowak, Moritz Birk, Giuliana Monina

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 03 October 2023

Torture — Treaties, interpretation

(p. 441) Article 16  Cruel, Inhuman or Degrading Treatment or Punishment

  1. 1.  Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment.

  2. 2.  The provisions of this Convention are without prejudice to the provisions of any other international instrument or national law which prohibit cruel, inhuman or degrading treatment or punishment or which relate to extradition or expulsion.

1.  Introduction

The human right to personal integrity is usually defined as the right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment.1 The CAT was not adopted to reaffirm these prohibitions but to ‘make more effective the (p. 442) struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world’,2 in particular through the creation of specific State obligations to punish the perpetrators and to prevent such practices. Article 16 mirrors Article 2 and provides a broad obligation of States to prevent cruel, inhuman or degrading treatment or punishment. Issues of interpretation that have been thoroughly debated are the scope of Article 16 and which State obligations, as outlined by the Convention, are not only applicable to torture, but also to cruel, inhuman or degrading treatment or punishment. Developments over time in terms of how to interpret these State obligations can especially be witnessed vis-à-vis the legal qualification of corporal and capital punishment.

2.  Travaux Préparatoires

Although the General Assembly had instructed the Commission in 1977 to draw up a draft Convention on torture and other forms of ill-treatment, it was clear that certain State obligations should only apply to the practice of torture. Some States, such as the United States, even suggested that the Convention should exclusively or at least primarily focus on torture alone.3 Similarly, the IAPL draft only covered torture. The Swedish draft, on the other hand, in line with the 1975 Declaration, defined torture as an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment and intended to make most provisions applicable to both torture and other forms of ill-treatment.

During the deliberations in the Working Group, the following compromise was achieved: in principle, the Convention only applies to torture as defined in Article 1(1), but in Article 16, States parties shall undertake also to prevent other acts of ill-treatment which ‘do not amount to torture as defined in article 1’. This means, first of all, that it was originally envisaged that all obligations related to the use of criminal law, ie Articles 4 to 9, only apply to torture. The obligation to prevent other forms of ill-treatment was accentuated by the second sentence in Article 16(1) according to which ‘in particular, the obligations contained in articles 10, 11, 12, and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment’. But the Convention also contains provisions which are neither criminal nor purely preventive in nature, ie Articles 3, 14, and 15. The reference to these provisions in Article 16 was originally contained in brackets but later deleted in order to achieve a consensus. On the other hand, the words ‘in particular’ indicate that the reference to Articles 10, 11, 12, and 13 is not exhaustive. Whether the obligations contained in other provisions, above all the obligation in Article 14 to ensure that the victim obtains redress, compensation, and rehabilitation, only apply to torture or also to other forms of ill-treatment, needs, therefore, to be resolved by means of interpretation. The Committee has also provided more guidance in recent years, eg through its General Comments.

During the drafting of Article 16, it also soon became clear that a proper definition of the terms cruel, inhuman or degrading treatment or punishment was impossible to achieve. The precise meaning of these words is also in need of interpretation. Finally, the Convention does not contain any specific human right not to be subjected to torture or other forms of ill-treatment. Article 16(1) only creates a State obligation to prevent cruel, (p. 443) inhuman or degrading treatment or punishment, similar to the obligation in Article 2(1) to take effective measures to prevent torture. The question, therefore, arises whether Article 16 can be invoked as an individual right before domestic courts and in the individual complaints procedure before the Committee, which is clearly to be answered in the affirmative.4

3.  Issues of Interpretation

3.1  Meaning of Cruel, Inhuman or Degrading Treatment or Punishment

There is no definition of cruel, inhuman or degrading treatment or punishment (hereinafter also referred to as ‘other forms of ill-treatment’) in international treaties, but it is commonly distinguished from torture as defined under Article 1.5 However, from the drafting history of the Convention and the discussions on the definition of torture, it becomes clear that the drafters had relied more on the approach taken by the European Commission of Human Rights in the Greek case than on the approach of the European Court of Human Rights in the Northern Ireland case.6 It follows that the decisive criteria for distinguishing torture from cruel and inhuman treatment is the purpose of the conduct, the intention of the perpetrator, and the powerlessness of the victim.7

Cruel and inhuman treatment or punishment, therefore, can be defined as the infliction of severe pain or suffering, whether physical or mental, by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. Such conduct can be both intentional or negligent, with or without a particular purpose. It does not require the specific situation of detention or direct control of the victim by the perpetrator, which is characteristic only for torture.8 Cruel and inhuman treatment or punishment, therefore, also encompasses excessive use of force by law enforcement officials for other purposes, such as defending a person from unlawful violence, effecting a lawful arrest, preventing the escape of a person lawfully detained, quelling a riot or insurrection, or dissolving a demonstration (see section 3.7 below). Outside the narrow scope of torture, the infliction of severe pain or suffering may be justified if such use of force serves a legitimate purpose and is not excessive.

The principle of proportionality must, therefore, be applied in order to assess whether the infliction of severe pain or suffering amounts to cruel or inhuman treatment or punishment. If the use of force is not necessary and in the specific circumstances of the case not proportional with the purpose achieved, it amounts to cruel or inhuman treatment. (p. 444) Once a person is powerless, ie is under direct physical or equivalent control of the perpetrator and has lost the capacity to resist or escape the infliction of pain or suffering, the proportionality is no longer applicable.9

There are no clear legal criteria for distinguishing cruel from inhuman treatment, apart from our common understanding of the meaning of the words ‘cruel’ and ‘inhuman’.10 However, in practice this seems to be of little relevance and a distinction has so far not been made by the Committee.

Degrading treatment or punishment can be defined as the infliction of pain or suffering, whether physical or mental, which aims at humiliating the victim. Even the infliction of pain or suffering which does not reach the threshold of ‘severe’ must be considered as degrading treatment or punishment if it contains a particularly humiliating element.11 According to the ECtHR and the European Commission of Human Rights, a treatment or punishment will be degrading ‘if it grossly humiliates [the victim] before others or drives him to act against his will or conscience’12 and when ‘it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing [victims]’.13 The Court has found a violation also when there was no evidence of intent to humiliate or debase the victim. The UNSRT and ECtHR have found the forcible and discriminatory testing for HIV and Hepatitis C,14 the shackling or handcuffing in front of a public,15 or even the unjustified use of force in detention that does not reach the level of severity (such as a slap in the face of a juvenile)16 as constituting examples for degrading treatment.

10  As for torture, also cruel, inhuman and degrading treatment can be committed by public officials by instigation, consent, and acquiescence which need to be interpreted like the terms in article 1 (see further section 3.8 herein below).17 This obligation of States parties to act with due diligence is part of the general obligation to protect individuals against widespread human rights violations by private parties.18 This is particularly important as States are increasingly delegating part of their law enforcement, intelligence, and military operations to private companies outsourcing selected tasks, including the use of force, to running entire detention facilities. Thus the UNSRT has recalled that (p. 445) States cannot absolve themselves from their international legal responsibility for acts of torture and other forms of ill-treatment.19

11  The Committee has given various examples of acts thateither amount to torture or ‘other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article’ in its Concluding observations. Situations that may constitute cruel, inhuman or degrading treatment or punishment are, but not limited to, poor conditions of detention, corporal and capital punishment, excessive use of force, and failing to protect individuals from ill-treatment by private actors, eg domestic violence, female genital mutilation, and trafficking in human beings, all of which are addressed in the sub-sections below.20 However, if the additional definition criteria for torture are fulfilled, these practices may also amount to torture.21

12  The United States entered a reservation and considers itself bound by the obligation under Article 16 only in so far as the term ‘cruel, inhuman or degrading treatment or punishment’ means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution.22 Several member States objected to this reservation as being incompatible with the object and purpose of the Convention,23 and also the Committee considered this reservation explicitly as a violation of the CAT.24 The United States later argued that the reservation ‘does not introduce any limitation to the geographic applicability of article 16’, and that ‘the obligations in article 16 apply beyond the sovereign territory of the United States to any territory under its jurisdiction’ but it did not follow the Committee’s recommendation to withdraw the reservation.25

(p. 446) 3.2  Applicability of Articles 3 to 15 to Other Forms of Ill-Treatment

13  Under Article 16, States parties undertake ‘to prevent’ acts of ill-treatment.26 In the second sentence of Article 16(1), the drafters, after long and controversial discussions, specified the obligation to prevent as follows: ‘In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment.’ During the drafting, many States wished to add to this list of obligations those contained in Articles 3, 14, and 15.27 Since an agreement could not be reached, these references were deleted from the draft, and the words ‘in particular’ added in order to show that this reference is not exhaustive.28

14  There has been a lengthy discussion around the interpretation of the words ‘in particular’, arguing either that all rules of the Convention mutatis mutandis are applicable also to cruel, inhuman or degrading treatment or punishment29 or that it does not go beyond the obligations covered by Articles 10 to 13.30

15  In its General Comment No 2 the Committee appeared to favour a broad interpretation stipulating that: ‘Article 16, identifying the means of prevention of ill-treatment, emphasizes “in particular” the measures outlined in articles 10 to 13, but does not limit effective prevention to these articles.’31 As reasons it states that the obligations to prevent torture and other forms of ill-treatment are ‘indivisible, interdependent and interrelated’,32 overlapping and largely congruent in practice. The definitional threshold between them is often not clear and according to experience the very same conditions that enable ill-treatment also facilitate torture. The Committee therefore concludes that ‘the measures required to prevent torture must be applied to prevent ill-treatment’.33 However, this broad interpretation has to be read in the context in which General Comment No 2 was drafted, namely in the light of the atrocities committed in the name of the so called ‘war on terror’ (eg the incidents of Abu Ghraib) and the threat to the absolute prohibition of torture.34 The purpose of the Committee’s extensive interpretation was thus to reject any attempts to justify torture and other forms of ill-treatment and to bolster its absolute prohibition. This is confirmed by the Committee’s subsequent practice where it has not upheld its view that all articles of the CAT apply equally to torture and other forms of ill-treatment.

(p. 447) 16  A literal interpretation of the term ‘in particular’ suggests that neither the Convention as a whole nor exclusively the articles mentioned in Article 16 should apply to other forms of ill-treatment. The wording explicitly leaves it open, suggesting that an applicability to other than the mentioned articles is possible.

17  When looking at the Convention as a whole it becomes clear that Article 16 cannot apply to all articles of the Convention as otherwise there would be no reason to separate between Article 2 and 16 in the first place. Moreover Article 16 refers to the obligation of States parties to ‘prevent’ other forms of ill-treatment not amounting to torture and specifically confirms the applicability of the key preventive articles 10 to 13 to other forms of ill-treatment. In that regard it stands clearly separate from the preceding Articles 4 to 9 that—despite their preventive effect—are primarily of a repressive (criminal) nature. The objective thus seems to be that the mainly preventive obligations can also apply to other forms of ill-treatment unlike the obligations of States parties to use domestic criminal law for the purpose of investigating any crime of torture and bringing the perpetrators to justice. The travaux préparatoires equally show that all the provisions relating to the criminal prosecution of the perpetrators of torture (Articles 4 to 9) would only apply to torture in the narrow sense of Article 1, with one argument being the difficulty to define cruel, inhuman or degrading treatment or punishment, because these terms were not defined in the Convention.35 Only the three provisions, which were put in square brackets during the deliberations in the Working Group (Articles 3, 14 and 15), were considered controversial.

18  This means that the obligations deriving from Articles 4 to 9 apply exclusively to torture, as defined in Article 1. States are, therefore, not required to introduce the offence of inhuman treatment as a crime in domestic law and apply the principle of universal jurisdiction to these forms of ill-treatment. On the other hand, the obligations to prevent torture by means of education and training, by systematically reviewing interrogation rules and practices, by ensuring a prompt and impartial ex officio investigation, and by ensuring an effective complaints mechanism, as laid down in Articles 10 to 13, must be applied equally to torture and other forms of ill-treatment. The applicability of the other provisions of CAT must be considered in light of their specific purpose; in particular, whether these obligations are more of a preventive or repressive (criminal) nature.

19  The principle of non-refoulement in Article 3 is of preventive nature while at the same time clearly separated from the key preventive articles in the Convention. This confirms its specific importance for the prevention of torture as well as the particular nature of the obligation—relating to a risk of torture in another State. The systematic position and separation from the other preventive articles suggests that the applicability to ill-treatment was not intended. This interpretation is confirmed by the travaux péparatoires, showing that during the drafting process, many Governments, above all the United States, clearly stated that this principle only applies to the danger of being subjected to torture in the most narrow sense.36 Moreover, in its first General Comment to Article 3 of 1998, the Committee made clear that ‘Article 3 is confined in its application to cases where there are substantial grounds for believing that the author would be in danger of being subjected to torture as defined in article 1 of the Convention’.37 Consequently in its first decision (p. 448) in an individual case on this issue, BS v Canada, the Committee noted that Article 3 does not encompass situations of ill-treatment envisaged by Article 1638 and it has followed this line in its subsequent decisions, also in case law adopted after its General Comment 2 on Article 2.39

20  At the same time, the Committee in the case MMK v Sweden (regarding a complaint from a Bangladeshi citizen alleging a violation of Article 16 due to his ‘fragile psychiatric condition and severe PTSD’) observed that in very exceptional circumstances a removal per se may constitute cruel, inhuman or degrading treatment and thus violate Article 16 (although such exceptional circumstances had not been presented in the complainant’s case).40 Thereby the Committee acknowledges the fact that the duty to prevent torture (Article 2) and other forms of ill-treatment (Article 16) overlap in practice and the definitional threshold is often not clear. This reasoning is confirmed by the revised General Comment No 1 to Article 3 of 2017 in which the Committee interprets Article 3 to apply only to cases of torture, while nevertheless referencing its General Comment No 2. The Committee found that ‘States parties should consider whether forms of cruel, inhuman or degrading treatment or punishment that a person facing deportation is at risk of experiencing could likely change so as to constitute torture before making an assessment on each case relating to the principle of “non-refoulement.” ’41 Moreover it clarifies that ‘the fact that Article 3 of the Convention only deals with torture should not be interpreted as limiting the prohibition against extradition or expulsion which follows from such other instruments’.42 The position of the Committee is therefore clear insofar as the application of Article 3 does not extend to other forms of ill-treatment. However, this does not exclude the protection from ill-treatment by Article 16 or other non-refoulement principles as derived from Articles 3 ECHR or 7 ICCPR. Seemingly for that reason, the Committee has also recommended to States in some Concluding observations to provide protection from refoulement beyond the scope of Article 3 to ensure that no person in need of protection is returned to a country where he/she is in danger of being subjected to acts of torture and other forms of ill-treatment.43

21  Nevertheless, the Committee’s position is narrower regarding the applicability of the prohibition of non-refoulement than positions of other international organs: the (p. 449) ECtHR has applied the prohibition of refoulement under Article 3 ECHR equally to the risk of torture and other forms of ill-treatment,44 and the UN Human Rights Committee has followed this jurisprudence in relation to Article 7 CCPR.45 The UNSRT has stated: ‘States are prohibited from returning anyone to a situation where there are substantial grounds to believe that the person may be subject to torture or ill-treatment.’46

22  Regarding the right to remedy and reparation contained in Article 14 the Committee has held in its first case on the matter, Hajrizi Dzemajl et al v Yugoslavia47 in 2002 that its scope of application only refers to torture and not to other forms of ill-treatment.48 Nevertheless, it stipulated that the first sentence of Article 16 encompasses the positive obligation to grant redress and compensate the victims.49 The Committee has consequently stated that the State party has failed to observe its obligations under Article 16 when not providing the complainant with redress and fair and adequate compensation (but not of Article 14).50 However, ten years later the Committee took a different position in its General Comment No 3 of 2012, considering that it is ‘applicable to all victims of torture and acts of cruel, inhuman or degrading treatment or punishment’.51 This position was however not retained and in the case Sergei Kirsanov v Russia the Committee again rejected the applicability of Article 14 to ill-treatment and only found a violation of Article 16.52

23  This result is confusing and unsatisfactory. The Committee clearly interprets the words ‘to prevent’ in Article 16 in a broad sense, to include the positive obligation to grant redress and compensate the victims of an act in breach of Article 16. This is also confirmed by the travaux préparatoires indicating that no State had a strong argument against including the right to remedy and reparation in the indicative list of provisions referred to in Article 16(1), but that concerns focused primarily at applying the concept of cruel, inhuman or degrading treatment or punishment in criminal law.53 Moreover, the words ‘in particular’ in the second sentence of Article 16(1) must have some normative sense, as confirmed by the Committee itself in its General Comment. The consequences of ill-treatment for the victim can be the same as with torture and it appears that the Committee intended to extend the scope of Article 14 to afford its broadest protection.54 Therefore, Article 14 must be interpreted to extend to other forms of ill-treatment.

(p. 450) 24  A similar argument can be made regarding Article 15 that has a preventive purpose and is placed among the preventive obligations rather than those of a repressive (criminal) nature.55 It is moreover one of the articles that many States wished to add during the drafting phase to be explicitly mentioned under the list of obligations in Article 16.56 However, even if one were to follow the view that Article 15 only applies to torture, in practice, if Article 15 were applied to other forms of ill-treatment, the result would not be different, because the provision aims at preventing confessions and other statements extracted during interrogation from being used as evidence in court. But extraction of confessions and information is the classical and most widespread purpose of torture. Any severe pain or suffering inflicted for the purpose of extracting a confession or other information therefore constitutes not only cruel and inhuman treatment but also torture.57

3.3  State Obligations to Prevent Cruel, Inhuman and Degrading Treatment or Punishment

25  The Committee has elaborated in its individual complaints procedure, as well as in its Concluding Observations, how it interprets Article 16 and the State obligations emanating out of it. In its Concluding Observations the Committee usually references both, Articles 2 and 16 (often in combination with Article 11), thereby acknowledging what it had argued in its General Comment on Article 2, namely that in practice the obligations to prevent torture and ill-treatment are overlapping and that the State’s obligations under Articles 2 and 16 have to be considered as ‘indivisible, interdependent and interrelated’.58 Despite the explicit absence of a prohibition, acts of torture and other forms of ill-treatment in the Convention must be interpreted as a violation of Article 2 and 16 respectively and can be claimed before the Committee.59 This was explicitly accepted by the Committee in numerous cases, mostly with regard to inacceptable conditions of detention, but also in cases of enforced disappearances as well as where abuses were committed by law enforcement officials outside detention.60

3.4  Prevention of Ill-Treatment in Detention

3.4.1  Ensuring Adequate Material Conditions of Detention

26  In his final report as UNSRT, Manfred Nowak identified a ‘global prison crisis’.61 In far too many countries in all world regions, the general conditions of detention (overcrowding, lack of adequate food, healthcare, and natural light, and deplorable sanitary conditions, etc) are so poor that they can only be described as cruel, inhuman and degrading treatment. Many detainees report that they suffer more from such prison (p. 451) conditions than the torture methods that they have been subjected to in the first days of interrogation, although even the worst forms of detention conditions cannot be characterized as torture because the elements of intention and a specific purpose are lacking.

27  The Committee has found a number of violations of Article 16, mostly in conjunction with Article 11, due to insufficient detention conditions in the individual complaints procedure, such as in Abdulrahman Kabura v Burundi where the complainant was cramped in a cell of 12m2 with 10 other detainees, without windows or light and without water, food or any medicines for 17 days, where detainees were forced to drink water from the toilet to survive.62 In Boniface Ntikarahera v Burundi a violation of Article 16 in conjunction with Article 11 was found by the Committee because the detention situation was characterized by overcrowding, insanitary conditions, no access to a doctor and the absence of a monitoring mechanism.63 In Sergei Kirsanov v Russian Federation, the complainant was held in a temporary confinement ward for three-and-a-half months and again for approximately one month, without any bedding or toiletry items, no toilet, table, or sink, only seldom showers, and then, only with cold water, and no walks outside. Additionally, there were insects in the cell and the light always on, no ventilation, and food only once a day—consequently, the Committee found a violation of Article 16.64 In order to constitute ill-treatment the conditions of detention must attain a minimum level of severity which depends on all circumstances of the case but is usually reached with an accumulation of different factors.65

28  Thus, Article 16 entails a positive obligation towards persons deprived of liberty to ensure adequate material conditions similarly to the obligations derived from Articles 7 and 10 ICCPR.66 The Committee emphasizes that detention conditions have to be in line with the internationally recognized standards, particularly the UN Standard Minimum Rules for the Treatment of Prisoners (Mandela Rules),67 by reducing overcrowding and taking effective measures to improve conditions of detention.68 States parties should ensure that detainees have access to medical, psychosocial, and mental healthcare, hygiene (p. 452) and basic necessities, access to drinking water, and at least two meals per day as well as natural and artificial light and ventilation in the cells.69 States parties should also take measures to eradicate corruption in prisons70 and increase the number of staff and especially female prison officers.71 A lack of resources cannot be invoked by States to justify prison conditions that are not in compliance with minimum international standards, as confirmed by the Human Rights Committee72 and the UNSRT.73 Certain minimum standards must be observed regardless of a State’s resources and level of development.74

29  The Committee has several times asked States to improve the capacity of prisons through renovations, in in some instances also recommended the establishment of additional prison facilities to comply with international standards, such as sufficient living space for each detainee.75 While in some instances old facilities need to be closed and new ones built because it is not possible to bring them in line with international standards, it is important to point out that in situations of overcrowding, instead of building additional prisons, it should always be alternatives to detention that are fostered.

3.4.2  Ensuring Discipline and Security In Line with Human Dignity of Detainees

30  In order to maintain and restore security and discipline in places of detention officials sometimes resort to practices that may violate the human dignity of detainees. Article 16 prohibits any use of force that is not strictly necessary and proportionate to a legitimate aim to be achieved such as in self-defence, or to prevent escape or physical resistance.76 The Committee has addressed different risk situations in that regard reaching from body searches and measures of restraint to specific conditions of treatment such as solitary confinement and incommunicado detention.

31  The Committee has found that invasive and humiliating body searches of individuals detained or deprived of their liberty can constitute ill-treatment and urged that they should be conducted only where absolutely necessary and in full compliance with international standards.77 This is also specified in the Mandela Rules stipulating that searches should only be undertaken in private and by trained staff of the same sex as the prisoner, respectful of the inherent human dignity and privacy of the individual. Body cavity (p. 453) searches should be carried out by healthcare professionals other than those primarily responsible for the care of prisoners or, at a minimum, by appropriately trained personnel.78

32  The authorities shall resort to measures of restraint only in exceptional circumstances.79 The Committee has emphasized that their use should be kept under constant review and appropriately recorded.80 Moreover, it has called for the abolition of certain methods such as electro-shock stun belts and restraint chairs that ‘almost invariably leads to breaches of article 16’.81

33  The Committee expressed its concern about solitary confinement for disciplinary violations for up to fourteen days and for up to two months to prevent escape, violation of life, or death of other persons and other crimes.82 Solitary confinement is defined by the Mandela rules as ‘the confinement of prisoners for 22 hours or more a day without meaningful human contact’;83 prolonged solitary confinement is understood as confinement without meaningful human contact for a time period in excess of fifteen consecutive days.84 Solitary confinement can have serious effects on mental health; the Committee has therefore repeatedly acknowledged that especially prolonged solitary confinement may constitute torture or ill-treatment.85 When determining whether solitary confinement amounts to a violation of Article 16 there are several factors the Committee considers: the specific conditions of the solitary confinement, the stringency of the measure, the duration, the objective pursued, and the effect on the person concerned.86

34  The Committee has expressly stated that States parties should limit the use of solitary confinement as a measure of last resort, for a period of time as short as possible and under strict supervision, with the possibility for judicial review, as well as in line with international standards.87 The Committee even recommended the abolition of solitary confinement,88 and underlined that even in high security facilities it should never be applied to persons with a psychosocial disability.89

(p. 454) 35  The UNSRT has urged States to prohibit solitary confinement as punishment due to the severe mental pain or suffering it may cause and recommended to develop and apply alternative disciplinary sanctions.90 When solitary confinement is used, harmful effects on the detainee should be minimized by ensuring access to adequate exercise, social and mental stimulation, and regular monitoring of health.91 The UNSRT also argued that the use of solitary confinement in pre-trial detention should be ended and that solitary confinement for juveniles and persons with mental disabilities should be abolished.92 Also indefinite solitary confinement should be abolished. According to the Bangkok Rules pregnant women or women with young children must also never be placed in solitary confinement.93 According to the UNSRT ‘solitary confinement used on death row is by definition prolonged and indefinite and thus constitutes cruel, inhuman or degrading treatment or punishment or even torture’.94

36  The Committee has expressed concern about the system of holding persons in incommunicado detention, where in contrast to solitary confinement, nobody, apart from the authorities, has contact with the detainee. While prolonged incommunicado detention and enforced disappearances in any case constitute a human rights violation for both the victim and close family members, solitary confinement might be justified for certain purposes (such as preventing evidence from being distorted) within certain time limits. However, the Committee has stated that regardless of the legal safeguards for its application, incommunicado detention for up to five days with no access to a lawyer, a doctor of choice, nor the ability to notify the family ‘facilitates the commission of acts of torture and ill-treatment’.95 Thus, it has repeatedly recommended in its Concluding Observations to abolish the practices of incommunicado detention altogether.96 If used it is to be explicitly and strictly regulated by law and has to be subject to ‘stringent judicial supervision’.97

3.4.3  Prevention of Inter-Prisoner Violence

37  The Committee has repeatedly expressed its concern and addressed the issue of inter-prisoner violence in its Concluding observations.98 As ill-treatment can be committed by public officials through instigation, consent, and acquiescence, States parties have a duty to prevent and eliminate inter-prisoner violence. If the State fails to act with due diligence to prevent inter-prisoner violence this can amount to ill-treatment.99 The Committee has acknowledged overcrowding, lack of staff, limited space and inadequate (p. 455) material conditions, lack of purposeful activities, drugs, and gangs as factors contributing to inter-prisoner violence and requested States parties to address these factors.100 In order to prevent violence in prisons, including suicides, the Committee has suggested to increase the number of staff, including those with training in the management of inter-prisoner violence, as well as to install video cameras.101

38  The Committee has also called upon States parties to establish confidential systems for complaints, including complaints about sexual violence that are available in all places of detention.102 Cases of inter-prisoner violence are to be thoroughly investigated and perpetrators punished.103 Victims of inter-prisoner violence or their families should be in a position to receive compensation.104

39  The UNSRT has emphasized the importance of trainings in order to sensitize prison staff about how important it is to take effective steps to prevent and remedy inter-prisoner violence and provide them with the necessary competences to do so.105

40  Certain detainees, such as members of particular racial, ethnic, or national groups; lesbian, gay, bisexual, transgender, and intersex people, and persons convicted or suspected of sexual crimes may be at a higher risk of violence and abuse from other prisoners and thus the State may have to afford specific safeguards. States parties should also take measures to eradicate any form of discrimination against detainees.106 This issue is addressed in the section below.

3.4.4  Ensuring Protection against Ill-Treatment in Detention for Groups in a Specific Situation of Vulnerability

41  As Article 16 contains a general obligation of prevention this also obliges States to put into place safeguards against ill-treatment. The procedural safeguards required at arrest, during interrogation, and detention are the same as required by the obligation to prevent torture (Article 2) as it is largely overlapping and congruent with the obligation to prevent other forms of ill-treatment.107 Article 16 makes particular mention of Articles 11, 12, and 13 as specific preventive obligations. Therefore reference is made to Article 11 in regard to procedural safeguards and to Articles 12 and 13 in regard to the right to complain and the State duty to investigate cases of ill-treatment.108

42  The obligation of States to provide safeguards also means that unofficial places of detention are a ‘complete negation’109 of the guarantees against the deprivation of liberty and thus per se a breach of the Convention.110

(p. 456) 43  Particular measures must be taken to protect persons in a situation of vulnerability. The Committee states that

[t]he  protection of certain minority or marginalized individuals or populations especially at risk of torture is a part of the obligation to prevent torture or ill-treatment’ and that States must ensure that their laws implementing the CAT ‘are in practice applied to all persons, regardless of race, colour, ethnicity, age, religious belief or affiliation, political or other opinion, national or social origin, gender, sexual orientation, transgender identity, mental or other disability, health status, economic or indigenous status, reason for which the person is detained, including persons accused of political offences or terrorist acts, asylum-seekers, refugees or others under international protection, or any other status or adverse distinction.111

For that purpose the Committee has urged State parties to increase their efforts to combat discrimination of persons in a situation of vulnerability112 and to separate detainees for their protection taking account of their sex, age, criminal record, the legal reason for their detention as well as the necessities of their treatment,113 particularly juveniles from adults, pre-trial detainees from convicted prisoners and women from men.114

44  The Committee expressed specific concern over the conditions of children115 in detention, in particular when they are not segregated from adults and when sentenced to life imprisonment.116 The CRC specifically prohibits torture and ill-treatment and stipulates that deprivation of liberty shall be used only as a measure of last resort and for the shortest appropriate time and in a manner which takes into account the needs of persons of his or her age (Article 37). In this regard, guidance can be found in the UN Rules for the Protection of Juveniles Deprived of their Liberty (Havana Rules).117 In line with the CRC, the Committee has repeatedly asked States parties that children in conflict with the law should only receive a prison sentence as a last resort.118 The Committee has also recommended that States have to make sure that their juvenile justice system is in compliance with the UN Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules).119

45  The Committee has expressed concern at children being imprisoned with their mothers and has recommended increasing the use of non-custodial measures.120 If (p. 457) detention is unavoidable, States have to ensure that conditions are in accordance with the UN Rules for the Treatment of Women prisoners and Non-custodial Measures for Women Offenders (Bangkok Rules).

46  The UNSRT has emphasized that regardless of the conditions in which children are held, ‘detention has a profound and negative impact on child health and development’,121 with even short periods of detention having the potential to negatively impact cognitive development.

47  Despite the existing standards, detention of children under inhuman conditions remains a serious problem worldwide with immeasurable consequences on their development and the society at large. Therefore the UN Secretary-General has commissioned an in-depth Global Study on children deprived of liberty, lead by the Independent Expert Manfred Nowak, to examine the scope, reasons, and alternatives to detention of children to be submitted to the General Assembly in 2019.122

48  Despite the fact that the number of elderly detainees is steadily rising, which leads to questions on how to deal with health issues like dementia, chronic diseases, and other geriatric conditions,123 the Committee does not seem to have expressed itself on these kind of issues yet.

49  Women face specific risks to be subjected to ill-treatment in detention. The Committee and the UNSRT have specifically noted their concern regarding sexual violence and assault, including rape, insults, humiliation, and unnecessary invasive body searches, especially when women are not separated from male detainees or male staff are responsible for their care.124 Women have specific needs when deprived of liberty which are addressed in detail in the UN Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (Bangkok Rules)125 complementing the Mandela Rules.126 According to the UNSRT, the risk of torture or ill-treatment against women deprived of their liberty would significantly decrease if these standards were implemented and he thus calls on States to create regulations and trainings, as well as to further monitor the situation.127

(p. 458) 50  The Committee has stated that gender is a key factor in the prevention of torture and other forms of ill-treatment emphasizing that also men are ‘subject to certain gendered violations … on the basis of their actual or perceived non-conformity with socially determined gender roles’.128 Moreover, lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons run a particular risk of ill-treatment in detention. Both the Committee and Subcommittee have emphasized the risk of ill-treatment of LGBTI persons deprived of liberty in prison, in healthcare facilities, or in immigration detention.129 The Subcommittee stated that authorities ‘must recognize specific risks, identify those who are in a vulnerable situation and protect them in ways that do not leave them isolated’ and criticized the lack of institutional policies and methods to adequately address self-identification, classification, risk assessment, and placement.130 The Yogyakarta Principles provide guidance on measures to protect LGBTI persons against discrimination and abuse in detention.131

51  Pre-trial detainees do not only face the highest risk to be tortured but also to be subjected to particularly poor detention conditions amounting to ill-treatment.132 The Committee has repeatedly expressed concern about prolonged pre-trial detention.133 It found that long periods of pre-trial detention and delays in judicial procedure, together with the overcrowding in prisons resulting in convicted prisoners and prisoners awaiting trial being held in police stations and other places of detention not adequately equipped for long periods of detention, could in themselves constitute a violation of Article 16 CAT.134

52  The Committee has expressed its concern that widespread use of pre-trial detention might undermine the right to presumption of innocence135 and has reiterated that States parties should step up non-custodial measures through the application of alternative measures to imprisonment, such as probation, bail, mediation, community service, and suspended sentences and in line with the UN Standard Minimum Rules for Non-custodial Measures (Tokyo Rules)136 and the Bangkok Rules.137 States should for example amend their legislation and only impose pre-trial detention as a measure of last resort and (p. 459) for a limited period, as well as to make sure that alternatives to detention are effectively applied by the judiciary.138

53  The Committee has expressed its concern at the poor conditions and inadequate treatment of persons with mental or physical disabilities, especially forceful internment and long-term restraints used in social care institutions and psychiatric hospitals that amount to torture or other forms of ill-treatment.139 According to the Committee, involuntary deprivation of liberty should only be undertaken on the basis of a legal decision, effectively guaranteeing periodic judicial review as well as all legal safeguards.140 It recommended community based alternatives in order to proceed with de-institutionalization.141 States parties should also ensure independent oversight of institutions and frequent monitoring by NHRIs and CSOs.142 It has stipulated that States parties shall make sure that the right of institutionalized persons to mental and physical integrity, especially in case of restraint measures or enforced treatments such as neuroleptic drugs, is ensured.143 Means of physical or chemical restraint should be avoided or used as a last resort only, when all other alternatives have failed, never as a punishment, for the shortest duration possible, under strict medical supervision, and should be recorded in registers that are subject to independent monitoring.144 Moreover, the Committee recommended increasing the number of medical staff and rehabilitation activities in forensic psychiatric hospitals.145

54  Migrants and refugees tend to be criminalized upon interception or rescue and held in substandard and overcrowded conditions amounting to torture or ill-treatment.146 The Committee held that the detention of asylum seekers, as well as other migrants should only be used as a last resort, when strictly necessary, and if it is applied, duration shall be as short as possible, as well as proportionate to each individual’s case.147 Mandatory deprivation of liberty for persons entering the territory of the State party should be repealed and at the same time ensured, that persons are not held indefinitely, eg in case of stateless persons receiving a negative decision in their asylum proceeding or persons with ‘adverse security or character assessments’.148 States parties should also ensure that alternatives to detention are made use of when feasible, medical check-up upon arrival is guaranteed, and psychological follow-up examinations by a specifically trained independent health expert in case of signs of torture or traumatisation are provided.149

There need to be statutory time limits for the detention, and if a person is detained, he/she needs to have access to an effective judicial remedy and must be in a position to challenge administrative decisions regarding the person’s detention, expulsion or refoulement.150 In AA v Denmark, where the detention lasted less than three months, with (p. 460) regular judicial reviews and psychiatric examination and medication, the Committee did not find a violation of Article 2 and 16 of the Convention.151

3.5  Preventing Cruel, Inhuman or Degrading Punishments

55  The Committee and other human rights monitoring bodies have dealt extensively and controversially with the issue of corporal and capital punishment. While these are still applied to this day by the State or with its acquiescence, the view of human rights mechanisms on such forms of punishment has developed significantly over the last decades. Other punishments which the Committee has criticized as possibly constituting violations of Article 16, include life imprisonment for children,152 and for certain crimes;153 hard labour;154 internal exile and confinement at home;155 solitary confinement as a punishment;156 ‘chain gangs’, electro-shock stun belts, and restraint chairs if used as punishments157 (if used as methods of restraint see section 3.4.2). The lawful sanctions clause in Article 1, paragraph 2 cannot be understood to legitimize forms of punishment that are cruel, inhuman or degrading.158

3.5.1  Corporal Punishment

56  There are two forms of corporal punishments: administrative and judicial.159 Judicial corporal punishments are imposed by courts in a sentence after conviction; administrative corporal punishments are disciplinary measures, eg in prisons or schools.

57  In 1978, the ECtHR had ruled that birching of a juvenile as a traditional punishment on the Isle of Man was no longer compatible with the prohibition of degrading punishment in Article 3 ECHR.160 Shortly thereafter the HRC, in a General Comment of 1982, expressed the unanimous opinion that the prohibition of Article 7 CCPR ‘must extend to corporal punishment, including excessive chastisement as an educational or disciplinary measure’ which was confirmed in the revised General Comment of 1992.161 But it was only in 2000 that the HRC confirmed this opinion in an individual case. In the landmark decision of Osbourne v Jamaica, which concerned the judicial sentence of ten strokes with the tamarind switch on the naked buttocks in the presence of twenty-five prison warders, it took a very clear and unanimous position:162 ‘Irrespective of the (p. 461) nature of the crime that is to be punished, however brutal it may be, it is the firm opinion of the Committee that corporal punishment constitutes cruel, inhuman and degrading treatment or punishment contrary to article 7 of the Covenant’. This case law has been reaffirmed in later decisions.163

58  The Committee against Torture had a more difficult task since Islamic and other States took the position that corporal punishment was covered under the lawful sanctions clause in Article 1 and, therefore, could not be considered as a violation of Article 16.164 Other Governments, in the State reporting procedure, reported under Article 16 about their efforts to reduce and eradicate corporal punishment. The Canadian representative referred in 1993 to a statement by the Supreme Court that certain punishments, such as corporal punishment, will always offend the protection against cruel and unusual punishment. Canada was also re-examining a provision in the Criminal Code which permitted reasonable force by a parent or school teacher in the correction of a child.165 Similarly, Sweden in the same year informed the Committee in relation to Article 16 that under its domestic law the use of corporal punishment against children was prohibited.166

59  These legal opinions of Governments encouraged the Committee, which in the early years was very hesitant to take up corporal punishment, to take a firmer stand.167 During the discussion of the Jordanian report in 1995, the Committee expressed concern that the continuing application of capital and corporal punishment ‘could constitute in itself a violation in terms of CAT’ and recommended that the Government review its policy relating to corporal punishment.168 Similarly, in 1997 the Committee recommended to Namibia the ‘prompt abolition of corporal punishment insofar as it is legally still possible under the Prisons Act of 1959 and the Criminal Procedure Act of 1977’.169 In respect of Libya in 1999, the Committee noted with satisfaction that corporal punishment had not been used in recent years, but stressed nevertheless that it should be abolished by law.170 In 2005 the Committee welcomed the abolition of corporal punishment in Uganda following the 1999 judgment of the Supreme Court in Kyamanywa v Uganda.171

60  The clearest conclusion that corporal punishment was not in conformity with the Convention was reached when the Committee discussed the reports of Saudi Arabia, Yemen, and Qatar in the early 2000s; a conclusion that was only recently re-confirmed.172 With respect to Saudi Arabia, in 2002 the Committee considered the imposition of corporal punishments (including in particular flogging and amputation of limbs) to be in breach of the Convention and recommended that the State party re-examine it. Such recommendation was reiterated in 2016, when it recommended to stop immediately the (p. 462) practices of flogging/lashing, amputation of limbs, and any other form of corporal punishment and prohibit their use by law, as they amount to torture and ill-treatment and constitute a violation of the Convention.173 While noting the State party’s indication that Shari’a expressly prohibits torture and other cruel, inhuman or degrading treatment, the Committee drew attention to the fact that domestic law itself does not explicitly reflect this prohibition, nor does it impose criminal sanctions.174

61  Successive UN Special Rapporteurs on Torture have also addressed the question of corporal punishment in their reports.175 UNSRT Nowak stated in his 2009 report, that corporal punishment as a form of ill-treatment remains widespread.176 In his 2005 report to the General Assembly, he concluded, on the basis of a review of jurisprudence of international and regional human rights mechanisms, that ‘any form of corporal punishment is contrary to the prohibition of torture and other cruel, inhuman or degrading treatment or punishment. Moreover, States cannot invoke provisions of domestic law to justify the violation of their human rights obligations under international law, including the prohibition of corporal punishment’177 and called upon States to abolish all forms corporal punishment without delay.178

62  The prohibition of corporal punishment also extends to administrative punishment and disciplinary measures outside of any criminal or other judicial process. This is explicitly stated for places of detention in the Mandela Rules and regional soft law standards.179 Also regarding the use of corporal punishment in schools and other welfare institutions for children the Committee has expressed its concern and urged to implement legislation banning such practices and to establish competent monitoring mechanisms for such facilities.180 The Human Rights Committee181 and the Committee on the Rights of the Child182 have equally argued that the use of corporal punishment is a violation of the respective Conventions.

63  This also extends to corporal punishment by private actors if committed with the consent and acquiescence of the State. The Committee express