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