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Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Part I Substantive Articles, Art.2 Obligation to Prevent Torture

Gerrit Zach

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: 27 September 2023

Subject(s):
Torture — Treaties, interpretation

(p. 72) Article 2  Obligation to Prevent Torture

  1. 1.  Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

  2. 2.  No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.

  3. 3.  An order from a superior officer or a public authority may not be invoked as a justification of torture.

1.  Introduction

1  The Convention does not contain any provision providing for a human right to personal integrity and dignity or not to be subjected to torture, cruel, inhuman or degrading treatment or punishment, similar to Article 7 CCPR or respective provisions in regional human rights treaties. By making reference to Article 7 CCPR in the Preamble, the Convention rather presupposes the existence of this human right and, in ‘desiring to make more effective (p. 73) the struggle against torture’ and cruel, inhuman or degrading treatment, creates a number of specific additional State obligations aimed at preventing and punishing torture and cruel, inhuman or degrading treatment. During the drafting process, the drafters decided to make a distinction between torture on the one hand, and cruel, inhuman or degrading treatment on the other. Article 16 requires States parties to prevent cruel, inhuman or degrading treatment and refers to a number of specific obligations in other articles of the Convention which shall equally apply to cruel, inhuman or degrading treatment. Article 2(1) constitutes the corresponding umbrella clause in respect of torture as defined in Article 1.

2  According to Article 2, States parties shall take effective legislative, administrative, judicial, and other measures to prevent torture in any territory under their jurisdiction, ie also on board ships and aircraft, in occupied, and other territories under their jurisdiction. In addition to the preventive obligations explicitly enlisted in the Convention, such as the prohibition of refoulement (Article 3), the obligations relating to the criminal prosecution of perpetrators of torture (Articles 4 to 9), the obligation to provide education and training to law enforcement and other personnel (Article 10), to systematically review interrogation methods and conditions of detention (Article 11), to investigate ex officio possible acts of torture (Article 12), and any torture allegations (Article 13), and the prohibition of invoking evidence extracted by torture in any proceedings (Article 15), the umbrella clause in Article 2(1) requires States parties also to take other effective measures aimed at preventing torture. Such measures relate primarily to guarantees in the context of the right to personal liberty and the right to a fair trial.

3  The comprehensive State obligations deriving from Article 2(1) are subject to international monitoring by the CAT Committee in all relevant procedures. In addition to the State reporting and inquiry procedure, individual applicants can also invoke violations of this provision in the individual complaints procedure under Article 22 CAT. If applicants claim that they have been subjected to torture in the past, the Committee concludes that the respective State party has failed to take effective measures to prevent torture and, therefore, finds a violation of Article 2(1) in conjunction with Article 1. If the treatment amounts to cruel, inhuman or degrading treatment, the Committee finds a violation of Article 16. But the Committee can also find violations of Article 2(1) in conjunction with other State obligations, such as the obligation in Article 4 to punish perpetrators of torture with appropriate penalties.

4  Article 2(2) confirms that the prohibition of torture is one of the few absolute and non-derogable human rights. No State may invoke any exceptional circumstances, such as war or terrorism, as a justification of torture. This provision, therefore, provides a clear answer to all attempts aimed at undermining the absolute prohibition of torture for the sake of national security in combating global terrorism, such as the ‘ticking bomb scenario’ or special interrogation methods in the framework of counterterrorism strategies.

5  Finally, Article 2(3) prohibits in criminal proceedings against torturers any defence of obedience to superior orders by any civil or military authority. Domestic laws providing for such a defence therefore violate Article 2(3). But this provision does not exclude criminal courts from applying mitigating circumstances if a perpetrator of torture was forced by a superior order to apply torture.1

(p. 74) 2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

6  Declaration (9 December 1975)2

Article 3

No state may permit or tolerate torture or other cruel, inhuman or degrading treatment or punishment. Exceptional circumstances such as state of war or a threat of war, internal political instability or any other public emergency may not be invoked as a justification of torture or other cruel, inhuman or degrading treatment or punishment.

Article 4

Each state party shall, in accordance with the provisions of this declaration, take effective measures to prevent torture and other cruel, inhuman or degrading treatment or punishment from being practised within its jurisdiction.

7  IAPL Draft (15 January 1978)3

Article IV

The Contracting Parties undertake to adopt legislative, judicial, administrative and other measures necessary to give effect to this convention to prevent and suppress torture …

Article V

The fact that a person was acting in obedience to superior orders shall not be a defence to a charge of torture.

Article VI

Torture can in no circumstances be justified or excused by a state or threat of war or armed conflict, a state of siege, emergency or other exceptional circumstances, or by any necessity or any urgency of obtaining information, or by any other reason.

8  Original Swedish Draft (18 January 1978)4

Article 2

  1. 1.  Each State Party undertakes to ensure that torture or other cruel, inhuman or degrading treatment or punishment does not take place within its jurisdiction. Under no circumstances shall any State Party permit or tolerate torture or other cruel, inhuman or degrading treatment or punishment.

  2. 2.  No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture or other cruel, inhuman or degrading treatment or punishment.

  3. 3.  An order from a superior officer or a public authority may not be invoked as a justification of torture or other cruel, inhuman or degrading treatment or punishment.

Article 3

Each State Party shall, in accordance with the provisions of the present convention, take legislative, administrative, judicial and other measures to prevent torture and (p. 75) other cruel, inhuman or degrading treatment or punishment from being practised within its jurisdiction.

9  Revised Swedish Draft (19 February 1979)5

Article 2

  1. 1.  Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

  2. 2.  No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture

  3. 3.  An order from a superior officer or a public authority may not be invoked as a justification of torture [however, this may be considered a ground for mitigation of punishment, if justice so requires].

2.2  Analysis of Working Group Discussions

10  In written comments Austria suggested that Article 3 of the original Swedish draft be merged with Article 2(1)6 and later, during the 1979 Working Group discussions, it was agreed that the obligations of States in Articles 2(1) and 3 of the original Swedish draft could be consolidated.7 It was further agreed to delete Article 3 on the basis that its objective had been achieved by the revised Article 2(1) which generally corresponds to Article 4 of the 1975 Declaration.8 Regarding the precise duty of States parties to the Convention, it was pointed out by one delegate that while a State could undertake to adopt measures to prevent torture, it could not undertake to ensure that torture would never occur. Other delegates also questioned whether Article 2(1) was not too broad, or was juridically sound.9

11  There were differing views as to whether reference should be made to torture alone or also to other forms of cruel, inhuman or degrading treatment or punishment. During the 1979 Working Group several delegates suggested the deletion of references to other forms of cruel, inhuman or degrading treatment or punishment because of the difficulty of defining the term.10 In written comments, the United States expressed the view that it considered it appropriate that Article 3 of the Swedish draft also address cruel, inhuman or degrading treatment or punishment since virtually identical obligations were already imposed under the CCPR and because ‘the nature of the obligation was not likely to deter many States from ratifying the Convention’. The United States also sought to incorporate Article 7(2) of the Swedish draft as a second paragraph to this Article which requires that torture be punished by severe penalties.11 At the same time, the United States took the opposite view regarding Article 2(2) of the Swedish draft, preferring to limit its scope to torture alone.

12  During the discussion in the 1979 Working Group there was a French proposal that the words ‘within its jurisdiction’ be replaced by ‘any territory under its jurisdiction’.12 It was stated that the phrase ‘within its jurisdiction’ might be interpreted too widely so as to cover citizens of one State who are resident within the territory of another (p. 76) State. In support of a proposal to use the wording ‘any territory under its jurisdiction’, it was emphasized that such wording would cover torture inflicted aboard ships or aircraft registered in the State concerned as well as occupied territories.13 According to Burgers and Danelius ‘territory under its jurisdiction’ is intended to include not only the actual land and territory of the State and its territorial sea, but also ships flying its flag and aircraft registered in the State concerned as well as platforms and other installations on its continental shelf.14

13  In written comments the United States proposed a new article, very similar to Article 2(2) and (3) which would provide that there is no justification for any act of torture. However, they chose to limit the proposed article to torture as they argued that there was no precise definition of cruel, inhuman or degrading treatment or punishment. The United States argued that cruel, inhuman or degrading treatment or punishment was a relative term and that ‘international standards are more difficult to achieve and what might constitute cruel, inhuman or degrading treatment in times of peace might not rise to that level during emergency conditions’.15 The Holy See welcomed the provision rejecting any justification of torture on grounds of exceptional circumstances ‘in light of certain schools of thought which seek to give national security priority over the rights of the person’.16 It is interesting to note that the drafters of the 1975 Declaration were unable to reach consensus on the same issue. A proposal to delete the second sentence of Article 3 of the Declaration which referred to ‘exceptional circumstances which should not be invoked as a justification for torture’ was not taken up and the language remained in the final text.17 Regarding the term ‘internal political instability’, France felt that this term did not correspond to any clear legal concept and could be deleted.18 The Swiss delegation noted that Article 2(2) of the original Swedish draft and its analogous provision in Article VI of the IAPL draft were consistent with existing international law, which prohibits acts of torture and ill treatment at all times.19 At the same time they proposed a safeguard clause according to which the provision stating that ‘no exceptional circumstances could justify torture or other cruel, inhuman or degrading treatment or punishment’ would be without prejudice to the provisions of the four Geneva Conventions of 12 August 1949 for the protection of victims of armed conflicts as well as the two Additional Protocols thereto of 10 June 1977.20

14  It is clear that an order by a superior official of a State organ may be no justification for torture. The Nuremberg Principles had already established that respondeat superior was no justification for the perpetration of serious international crimes including torture.21 (p. 77) This was the first time that this principle of respondeat superior had been included in a human rights treaty and therefore also the first time that this principle was rejected as a justification for torture in a human rights treaty. During the drafting there was discussion as to the possibility of whether the order of a superior, although not being a justification, could still be an extenuating fact justifying a milder penalty in line with Article 8 of the Nuremberg Charter.22 In written comments the United States noted that although orders from a superior officer cannot justify torture, it is a factor that should be considered in mitigation of punishment and proposed the following new Article 4:

1. No exceptional circumstances whatsoever, whether a state or threat of war, internal political instability or any other public emergency may be invoked as a justification for torture.

2. An order from a superior officer or a public authority may not be invoked as a justification for torture.23

15  During the 1979 Working Group discussions one (unidentified) delegate proposed the addition to paragraph 3 of a provision indicating that superior orders may be considered in mitigation of punishment if justice so requires. At the same time one (unidentified) delegate expressed his reservation about this paragraph. It was agreed to include the addition in brackets for consideration by the Commission on Human Rights.24 Following discussion in the 1980 Working Group it was decided that the wording in square brackets should be deleted in Article 2(3).25 There is nothing in the records that indicates what was actually said. Burgers and Danelius are also silent on this point. It is interesting to note that the ILC, in its formulation of the Nuremberg Principles, had deleted the sentence that dealt with the mitigation of punishment in Principle IV, regarding the reference to ‘mitigation of punishment’ as unnecessary.26 Principle IV was adopted as ‘[t]he fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible for him’.27 In its report to the General Assembly the ILC explained that the question of leniency in punishment should be determined by a competent court during the sentencing process, stating that the text was based on the principle contained in Article 8 of the Charter of the Nuremberg Tribunal.

3.  Issues of Interpretation

3.1  The Obligation to Take Effective Measures to Prevent Torture

3.1.1  Scope of Application

16  The Convention, strictly speaking, does not prohibit torture or cruel, inhuman or degrading treatment. A provision stating that no one shall be subjected to torture and cruel, inhuman or degrading treatment, as contained in Article 7 CCPR and similar (p. 78) provisions in regional human rights treaties, is missing in the CAT and had already been missing in the various proposals discussed during the drafting history.28 It is likely that such an individual right was taken for granted by the drafters and needs to be assumed to be implicit in the Convention.29 After all, in the Preamble the Convention explicitly refers to Article 7 CCPR and expresses the desire to make more effective the struggle against torture and cruel, inhuman or degrading treatment throughout the world.

17  The formulation of Article 2 (1) must be interpreted as including the obligation of States parties to respect and protect the human right not to be subjected to torture. But the main emphasis of this formulation, as in Article 16, is put on the positive obligation of States parties to fulfil.30 Article 2(1) CAT is drafted in similar words as Article 2(2) CCPR. The obligation to fulfil, derived from the latter provision, means to enact laws, to provide an effective remedy and procedural guarantees, to establish relevant legal institutions and other legislative, administrative, political, or judicial measures.31 Article 2(1) CAT puts the focus of the obligation to fulfil on effective measures to prevent acts of torture. This reflects the general object and purpose of the Convention, which is to strengthen the existing prohibition of torture by specific measures of criminal law aimed at deterring torture and other measures of a preventive nature.

18  The Committee has stipulated that the obligation to prevent torture and other ill-treatment under Articles 2 and 16 are ‘indivisible, interdependent and interrelated’32 and that the obligation to prevent cruel, inhuman or degrading treatment in practice very much overlaps and is largely congruent with the obligation to prevent torture.33 This is also reflected in the practice of the Committee, as it usually references Articles 2 and 16 together in its recommendations to States as part of the Concluding Observations.

19  The Committee has clarified in its General Comment on Article 2 that States parties are obliged to undertake ‘effective measures to prevent public authorities and other persons acting in an official capacity from directly committing, instigating, inciting, encouraging, acquiescing in or otherwise participating or being complicit in acts of torture’ as laid down in the Convention’.34 The Committee has emphasized that States bear responsibility not only for the acts and omissions of their officials, but also for others, such as agents, private contractors, and others acting in official capacity or on behalf of the State, in conjunction with the State under its direction or control, or otherwise under colour of law.35 States parties not fulfilling these obligations violate the Convention.

20  The question of whether the violation of the right not to be subjected to torture or cruel, inhuman or degrading treatment is at the same time a violation of the CAT and whether a victim of an act of torture or cruel, inhuman or degrading treatment can (p. 79) submit an individual complaint to the CAT Committee under Articles 2 or 16, respectively by now is clearly settled:36 not only Pieter Kooijmans, the first UNSRT, answered this question in the affirmative by referring to the implicit obligation of States under Article 2(1),37 but extensive case law of the Committee in which it has found a violation of Article 2(1) confirm this.

21  Generally, Article 2(1) is seen as an umbrella clause encompassing all the obligations to prevent torture as included but not limited to the in various provisions of the Convention, and Article 16 as constituting an obligation for States parties to prevent cruel, inhuman and degrading treatment. The typical obligations to prevent torture can be found in Articles 10 (education and training of law enforcement and other personnel), 11 (systematic review of interrogation methods), 12 (ex officio investigation of torture cases), 13 (investigation of allegations by torture victims), and 15 (non-admissibility of evidence extracted by torture in any proceedings). But also the prohibition of refoulement in Article 3 and the obligation of States to make torture a criminal offence with appropriate penalties in Article 4 and related provisions about universal and other forms of criminal jurisdiction in Articles 5 to 9 have a strong preventive character. Even Article 14, which provides for the right of torture victims to redress, can be interpreted as a measure with a deterrent effect aimed at preventing torture in the future.38 If the individual torturers were held accountable to pay full compensation for all long-term rehabilitation costs of their torture victims, this would probably have a stronger deterrent effect than many criminal sanctions.39

22  The understanding of Article 2 as an umbrella clause is partly, but not consistently reflected in the Committee’s individual complaints procedure: when finding violations of other Articles of the Convention, the Committee in most cases (except with regard to Article 3) seems to find a violation of Article 2 (1).40 At the same time, the Committee has found numerous violations of the Convention, especially with regard to Article 3, without finding a violation of Article 2(1).41 When consistently interpreting Article 2(1) as umbrella clause of the Convention, in principle, every time there is an act of torture, the Committee would actually also have to find a violation of Article 2(1).

23  Another question has been whether every single act of torture means that the State concerned has failed to take effective measures to prevent torture and, therefore, violated its respective obligation in Article 2(1). The practice of the Committee differs in this (p. 80) regard: In a case of torture it usually finds both, a violation of Article 1, as well as Article 2(1).42 However, it has also found violations of Article 2(1) read in conjunction with Article 1, but not of Article 1,43 as well as a few cases where it found a violation of Article 1 and not of Article 2.44 In Ali Ben Salem v Tunisia and Saadia Ali v Tunisia, where the Committee only found a violation of Article 1, but rejected finding a violation of Article 2, it did not dispute that a case of torture occurred but concluded—without any more detailed argumentation or analysis—that ‘the documents communicated to it furnish no proof that the State party has failed to discharge its obligations under these provisions of the Convention’.45 This conclusion is insofar surprising, as that every single act of torture means that the State has failed to take effective measures to prevent torture and, therefore, violated its respective obligation in Article 2(1). As already concluded above,46 it would be expected that in a case of torture, the Committee finds a violation of Article 2 (1) in conjunction with Article 1.47

24  While Article 2(1) stipulates that each State party has to take effective measures to prevent torture, there is no explicit reference in Article 2(1) to the time frame to be applied in implementing these measures. The question therefore arises as to whether such measures can be implemented gradually through progressive implementation or whether States parties are required to meet their obligations immediately.48 In general, the Committee has not accepted the principle of progressive implementation. It has rejected the argument that compliance with Article 2 was dependent on ‘… limited budgetary resources or limited professional awareness among staff’.49 The Committee, however, has not always interpreted this provision as to require strict immediate implementation. In its concluding observations to Kazakhstan, it recommended that the State party proceed ‘promptly’ to amend its domestic penal law to include the crime of torture, consistent with the Convention, and to take ‘urgent and effective steps’ to ensure the investigation, prosecution, and punishment regarding torture allegations.50 In contrast, in the case of Romania, the Committee stated that ‘the existing Government could not be seriously blamed, because it was quite clear that prison conditions could not be changed overnight and that considerable financial investment was needed. Nevertheless, the Romanian (p. 81) authorities should do everything they could to demonstrate their intention to improve the situation.’51 The Committee therefore has allowed some degree of flexibility concerning the time frame of implementation. There may be circumstances in which a State is allowed, temporarily, some latitude in its compliance, while at the same time the State has an obligation to continually improve its national laws as well as the practical application of these laws in line with the Convention and the Committee’s concluding observations and views adopted on individual communications.52 An act of torture, however, can never be justified. The Committee has made clear that ‘torture should be prohibited whatever the stage of development of a country and whatever the nature of the offence being investigated’.53

25  Boulesbaa rejects the idea of progressive implementation but at the same time asserts that the obligation of States to prevent torture is not absolute: ‘The obligation is rather to take steps to achieve reasonable results in the prevention of torture’.54 This contradiction is based on a simple misunderstanding of the obligations of States to respect and ensure human rights. Of course, the obligation of States to refrain from practicing torture (obligation to respect), which is also implicit in Article 2(1) as we have seen above, is absolute and, therefore, not subject to progressive implementation. Every individual case of torture, as defined in Article 1, constitutes a violation of this absolute and non-derogable right. But positive obligations of States, be they obligations of conduct or result, aimed at fulfilling a certain human right by means of legislative, administrative, judicial, political, and other measures are always relative and, therefore, subject to the principle of progressive implementation. Taking into account the indivisibility and interdependence of all human rights, this principle can no longer be applied exclusively to economic, social, and cultural rights, but must be applied to civil and political rights as well.55 Just to give an example: if there exists a reasonable training programme on how to prevent torture for prison and police officials, States parties are still under an obligation under Article 10 CAT to improve this training programme further in accordance with ‘good practices’ by means of ‘progressive implementation’ and to report on these ‘new measures taken’ to the Committee in accordance with Article 19(1). But the total absence of any anti-torture training would clearly violate the State obligation under Article 10 as well as its general obligation to take effective administrative measures to prevent acts of torture under Article 2(1).

26  While the Committee has recognized that States parties may choose the measures through which they implement their obligations, it has equally emphasized that a States party must take measures that are effective and consistent with the object and purpose of the Convention.56 In the reporting procedure, the Committee interprets this provision in the broadest sense and requests States parties to take a variety of measures aimed at preventing torture.

3.1.2  Legislative, Administrative, Judicial, or Other Measures

27  Article 2 stipulates that each State Party shall take ‘effective legislative, administrative, judicial or other measures to prevent acts of torture’. The formulation that (p. 82) ‘legislative, administrative, judicial or other measures’ are to be taken to prevent torture means that there can be other measures than legislative, administrative, or judicial, as the word ‘or’ indicates.

28  Though the Committee has considered in a general sense which measures must be taken by States parties to prevent torture, it has equally emphasized that no exhaustive list exists and obligations to take preventive measures go beyond the items enumerated specifically in the Convention or in its interpretation.57 Further, as methods of prevention are continuously evolving, the Committee has explained that Article 2 provides it with the authority to expand the scope of the measures required to prevent torture by building on other articles.58 In its Concluding Observations the Committee has developed a wealth of measures to be comprised the formulation ‘legislative, administrative, judicial or other measures’, some of them with concrete reference to other articles of the Convention, some of them developed from the broad understanding of the formulation of Article 2 as an umbrella clause for State obligations to prevent torture.59

3.1.2.1  Criminalization of Torture and Other Legislative Measures

29  The Committee has affirmed that taking effective measures against torture requires the States parties to ensure the implementation of Convention provisions by providing for the direct effect of these provisions. This may be by means of the transposition of the Convention provisions into national provisions or by recognizing the direct effect of the Convention provisions.60 Recognizing the Convention text only is not sufficient, but rather it must be transposed into clear national provisions and instructions, also in order to allow the Convention to be directly invoked in Court.61 The Committee has expressed much approval for those States parties that have adopted a special law to implement Convention provisions directly.62

30  In particular, States must criminalize torture under its criminal law, in accordance, at a minimum, with the elements of torture as defined in Articles 1 and 4 of the Convention.63 The Committee has also on many other occasions affirmed the importance of other legislative measures, eg to adopt a definition for terrorist acts and ensure treatment in compliance with the Convention and to ensure that counterterrorism and national security legislation are in compliance with the Convention,64 to prohibit corporal punishments65 (p. 83) and criminal sanctions such as flogging and stoning by law,66 and to prohibit hazing in the armed forces.67

31  A the same time, legislative measures by themselves are not deemed sufficient. For example its Concluding Observations on Peru, the Committee expressed the opinion that the legislative and administrative measures adopted in order to comply with the Convention were not effective and therefore did not meet the requirement of Article 2(1).68 This is also why the Committee usually recommends States parties to take a combination of measures, ie a mix of legislative, administrative, judicial, as well as practical implementation measures. One example in this regard is that in connection with implementation of the Convention and legislative measures to this end, States parties should at the same time make sure that public officials, judges, magistrates, prosecutors, and lawyers receive training so that they can apply the Convention and the jurisprudence of the Committee.69

3.1.2.2  Detention and Interrogation Safeguards

32  The Committee has confirmed on many occasions that Article 2 requires the guarantee of a number of fundamental safeguards of suspected persons without which torture and other ill-treatment would be more likely to occur.70 Also in the inquiry procedure, in finding that torture was systematically practiced in Lebanon, the Committee put particular emphasis on the lack of adequate legislation and implementation of fundamental legal safeguards.71 These rights include, inter alia, the right of prompt, unimpeded, confidential access to a lawyer, including during detention and if necessary to legal aid from the moment of the arrest and irrespective of the nature of the alleged crime.72 Furthermore, notification of relatives73 and access to an independent medical assistance, without the presence of an officer, or at least out of hearing of authorities and free of charge should be ensured.74

(p. 84) 33  States parties shall make sure that all detainees are promptly brought before a judge from the moment of their actual deprivation of liberty and have the possibility to challenge the legality of their detention or treatment effectively and expeditiously, including when under administrative detention.75 The Committee stipulated repeatedly that the maximum period of detention before a person is brought before a judge shall be forty-eight hours.76 Thus, in the inquiry procedure under Article 20 of the Convention, the Committee unsurprisingly found in its report on Turkey, that detention for thirty days before involving a magistrate was too long.77 In cases of a lacking supervision of detention by the competent judicial authorities or a competent oversight mechanism, the Committee has also found a violation of Article 2, paragraph 1, read in conjunction with article 1 of the Convention, due ‘to an increased risk of being subjected to acts of torture and [the deprivation] of any possible remedy’.78

34  The Committee confirmed on many occasions that these rights are to be afforded by law and in practice from the very outset of their deprivation of liberty and have to be the same for all detainees, including non-citizens, including in any form of administrative detention.79 In case detention safeguards were not granted, also in case of administrative detention, the Committee has repeatedly found a violation of Article 2 in individual complaints proceedings.80

35  According to the Committee, other essential safeguards are the verbal and written information relating to the detainee’s rights in a language that they understand and generally to receive language assistance through translation and interpretation,81 the right to be informed of charges, and the right to remain silent.82

(p. 85) 36  Also, the maintaining of an official (electronic) register where all detainees are systematically registered from the moment of deprivation of liberty was recommended by the Committee,83 with lawyers and relatives of those detained having access to these records.84 Unrecorded places of detention are not permissible.

37  A worldwide study looking at the effectiveness of torture prevention measures equally concluded that procedural protections in the first moments of arrest have the greatest impact to prevent torture.85

38  In Ramiro Ramírez Martínez et al v Mexico, the Committee has voiced its concern regarding preventive custody being implemented in military facilities, particularly its excessive duration and the lack of monitoring, as well as the number of complaints of torture by persons subjected to preventive custody, which lead to an environment that encouraged confessions obtained under torture and these being used as evidence.86 The Committee has therefore found a violation of Article 2(1). As part of the State reporting procedure, the Committee has also recommended that States parties should reduce preventive detention to an absolute minimum and consider abolishing the practice for young offenders.87

39  In the case of the State party’s failure to introduce measures to prevent torture of prisoners by or with the acquiescence of authorities, as well as prisoner-on-prisoner violence and in the absence of an independent prison monitoring mechanisms, the Committee has equally found a violation of Articles 2 and 11 of the Convention in the individual complaints procedure.88

3.1.2.3  Ensuring Independent Monitoring of Places of Detention

40  The Committee has stipulated that States parties should ensure that there are impartial mechanisms that visit and inspect places of deprivation of liberty.89 With the entry into force of the OP in June 2006, States parties to the CAT are provided with an excellent opportunity to open up their prisons and detention centres to more transparency and independent monitoring by both the UN Subcommittee on Prevention and so-called National Preventive Mechanisms (NPMs). Preventive visits to places of detention have a double purpose. The very fact that national or international experts have the power to inspect every place of detention at any time without prior announcement has a strong deterrent effect by shedding light on closed institutions. At the same time, such visits create the opportunity for independent experts to examine, at first hand, the treatment of prisoners and detainees and the general conditions of detention. One may therefore conclude that the ratification of the OP by States parties to the CAT and the creation of independent national preventive mechanisms in line with OPCAT and the Paris Principles constitute important measures in the sense of Article 2(1) CAT.90

(p. 86) 41  Where NPMs have not yet been established, States parties should cooperate closely with NGOs and provide them free access to places of detention in order to guarantee independent monitoring.91 Unhindered and unaccompanied access to all places of deprivation of liberty shall be guaranteed92 and recommendations by monitoring mechanisms shall be taken into account and followed up with practical measures by the States parties in order to prevent torture and improve the situation in prisons.93 The Committee has equally encouraged NPMs to avail themselves of the expertise of civil society organizations working in the same area.94

3.1.2.4  Non-Refoulement and Asylum Procedure

42  Pursuant to the Committee, States parties’ obligations under Article 2 encompass that they adopt all necessary measures to effectively implement its non-refoulement obligations under the Convention.95 It shall, inter alia, be guaranteed that persons can submit applications for asylum, that all applications are thoroughly examined, and that persons have a genuine opportunity to effectively appeal any adverse decisions adopted, that appeals have suspensive effect, and ensured that ‘all asylum seekers have access to independent, qualified and free-of-charge legal assistance during the entire asylum procedure’.96

3.1.2.5  Investigations and Prosecution

43  The Committee has repeatedly emphasized that as part of its obligations under Article 2, States parties are to promptly, impartially and effectively investigate all alleged acts of torture and ill-treatment,97 eg when traces of torture or ill-treatment are found during a medical examination,98 in cases of deaths of persons in custody,99 in case of excessive use of force by law enforcement agencies,100 regarding non-field related deaths in the army,101 in case of summary executions and enforced disappearances,102 in cases of trafficking and sex tourism.103 Those responsible shall be prosecuted and appropriately punished and victims or their families provided with redress.104 In a number of individual complaints the Committee found a violation of Article 2, read in conjunction with Article 1, because no such investigations were undertaken by the State party or these investigations have been dragging for many years without any outcome.105

(p. 87) 3.1.2.6  Providing Redress

44  In the landmark decision Guridi v Spain the Committee confirmed the broad interpretation that even Article 14, which provides for the right of torture victims to redress, can be interpreted as a measure aimed at preventing torture in the future. The Committee found a violation of Article 2 of the Convention because members of the Civil Guard who were convicted for torture and were sentenced to more than four years of imprisonment and payment of compensation were later pardoned by the Government and the King of Spain.106 The Committee also clarified that States need to exercise due diligence to intervene and stop, sanction, and provide remedies to victims of torture in order not to let non-State actors get away with impunity.107

3.1.2.7  Independence of the Judiciary and Access to Justice

45  The Committee has called upon States to ensure the full independence and impartiality of the judiciary in accordance with relevant international standards, such as the Basic Principles on the Independence of the Judiciary, and make sure they can operate free from any interference from the executive.108 This inter alia means that the selection, appointment, compensation, tenure, and dismissal need to comply with objective criteria such as qualification, integrity, ability, and efficiency.109 Dismissal of judges has to be in line with the Basic Principles on the Independence of the Judiciary and the Bangalore Principles of Judicial Conduct.110 To this end, States parties should provide the judiciary with the necessary human, technical, and financial resources.111 Also, rules of procedures of courts should be defined by the State party and an independent disciplinary body established.112 Victims of torture and ill-treatment should have access to justice, with States parties having to ensure that the judiciary is capable of addressing impunity and providing redress in accordance with the Convention.113 States parties should ensure that security forces comply with court orders.114 The Committee also emphasized the importance of a gender sensitive judiciary, eg by recommending to Saudi Arabia the appointment of women judges.115

3.1.2.8  Combating Trafficking, Sexual, and Gender-based Violence, Including Domestic Violence and Violence against Children, Persons with Disabilities, and Other Groups in Situations of Vulnerability

46  The Committee, as well as the UNSRT, have stipulated that sexual violence can constitute a form of torture.116 According to the Committee, States parties should ‘redouble their efforts’ to prevent and combat violence against women, including femicide, gender-based murders, disappearances, rape and sexual harassment, violence against (p. 88) children, including corporal punishment, and violence against persons with disabilities.117 The UNSRT has emphasized that by not acting with due diligence to protect victims of domestic violence, trafficking, female genital mutilation, and similar practices, States may commit torture or ill-treatment by acquiescence.118

47  According to the Committee, States parties should adopt legislation that criminalizes all forms of violence against women and children, including domestic violence, marital rape, forced marriages, and sexual harassment.119 They should enact comprehensive anti-trafficking legislation, including a definition for trafficking, as well as labour legislation that legally protects migrant domestic workers and effectively implement this legislation.120 Legislation has to be in conformity with international standards, including the CEDAW and the General Recommendation No 19 of 1994 on violence against women of the Committee on the CEDAW Committee.121

48  States parties should make sure that victims can lodge a complaint, that all complaints are registered, eg in a special record-keeping system,122 and that all allegations of trafficking, rape, domestic violence are appropriately investigated, while witnesses should be protected.123 In its Concluding Observations the Committee recommended to ensure that rapists cannot avoid criminal responsibility by marrying their victims.124 Generally the Committee ‘strongly discourages’ the settlement of sexual violence cases outside the formal justice system.125

49  According to the Committee, research should be undertaken on the causes and extent of trafficking, violence, including sexual and domestic violence, as well as the impact of preventive measures, National Action Plans, and criminal justice responses in order to increase their efficiency.126 States should make sure that law enforcement officials, lawyers, prosecutors, judges, social workers or migration officials or labour inspectors are familiar with legislation, are sensitized to all forms of violence against women, can detect domestic violence or trafficking victims, sexual violence, violence against children, and adequately respond.127 Awareness raising shall also address the (p. 89) general public and already children should be educated about violence against women and children.128

50  Trafficking victims should have access to shelters and protection, including protecting orders; cultural and financial barriers to access these should be removed.129 States parties should prevent the return of trafficked persons to their countries of origin if there are ‘substantial grounds to believe that they would be in danger of exploitation and torture or ill-treatment’.130 The Committee has underlined repeatedly that trafficking victims should not be penalized for acts committed as a result for being trafficked, be provided with immediate and genuine access to medical, social, and legal services, and receive rehabilitation, eg through programmes of assistance, recovery, and reintegration, in line with Article 14.131 The Committee also recommended States parties work with NGOs and establish systems and mechanisms of regional, international, and bilateral cooperation to prevent and punish trafficking and monitor their impact.132

51  States parties should ensure that women, especially rape victims, have access to safe and legal abortions.133 In the case of Peru, it was recommended that legislation should also allow distribution of oral emergency contraception for rape victims.134 Women should have the possibility to seek emergency medical care in case of abortions without having to go through extraction of confessions for prosecution purposes and medical personnel being penalized when they exercise their professional duty, as denying medical care to these women might constitute cruel and inhuman treatment.135 States parties should ensure that health professionals are informed about protocols on legal abortions as well as preserve confidentiality between doctors and patients in case of medical care in case of complications arising from an abortion.136

3.1.2.9  Collection of Disaggregated Data

52  The Committee has underlined the importance of continuous evaluation and that States parties provide statistical data to enable it to adequately evaluate the Convention’s implementation at the national level.137 Data should be disaggregated by gender, age, geographical region, and type and location of place of deprivation of liberty. States parties should also provide data on preventive measures, disaggregated by relevant status, (p. 90) complaints filed against public servants, investigations, prosecutions and convictions of cases of torture and ill-treatment by law enforcement, security, military, and prison personnel or results of disciplinary proceedings, as well as on honour crimes, trafficking, domestic and sexual violence, including sexual violence in detention, deaths in custody, enforced disappearances, violence against minorities, and on means of redress, including compensation and rehabilitation provided to the victims.138

3.2  Meaning of ‘any territory under its jurisdiction’

53  Article 4 of the 1975 Declaration and Article 3 of the Swedish draft referred to the obligation of a State to take measures to prevent torture and other forms of ill-treatment from being practised ‘within its jurisdiction’.139 In 1979, France proposed to replace these words with ‘any territory under its jurisdiction’, because otherwise the obligation to prevent torture might even extend to a State’s own citizens resident in another country.140 But it was stressed that ‘any territory under its jurisdiction’ would also cover torture inflicted aboard ships, aircrafts and in occupied territories.141

54  This formulation, therefore, seems to be fairly clear. States have an obligation to take measures to prevent torture in their own territory (land and sea), but also under any other territory under their jurisdiction, such as aboard ships flying their flag, aircraft registered in accordance with their laws, occupied territories, or other territories where civilian or military authorities of the State exercise jurisdiction, whether lawful or not.

55  The Committee has explained that it understands the concept of ‘any territory under its jurisdiction’ to be linked with the principle of non-derogability, and that it includes ‘any territory or facilities and must be applied to protect any person, citizen or non-citizen without discrimination subject to the jure or de facto control of a State party’.142 This does not only mean the State party’s sovereign territory but ‘all areas where the State partly exercises, directly or indirectly, in whole or in part, de jure or de facto effective control, in accordance with international law’.143 According to the Committee, States have an obligation to take measures to prevent torture not only on board of ships or aircrafts under the flag of the State party, but also during military occupation or peacekeeping operations, in places such as embassies, military bases, detention facilities, or any other areas over which the State party exercises factual or effective control. This interpretation is applicable also to other CAT Articles as well as the OPCAT.

56  The Committee has confirmed this interpretation equally in the individual complaints procedure, as well in its Concluding Observations. In the case Fatou Sonko v Spain, where Spanish Civil Guard officers exercised control over persons on board of a vessel and the Committee therefore emphasized the State Party’s responsibility for the persons’ safety.144 In its Concluding Observations to the UK’s report the Committee underlined its concern and called upon the UK to ‘publicly acknowledge that the Convention applies to all individuals who are subject to the State party’s jurisdiction or control, including to its armed forces, military advisers and other public servants deployed on operations (p. 91) abroad’.145 Also the position previously taken by the US, that Article 2 was geographically limited to US territory in the strict sense,146 excluding detainees at Guantánamo Bay from international scrutiny, was not only clearly rejected by the five independent experts of the UN Commission on Human Rights,147 but also by the CAT Committee.148 The US in the meantime has reviewed its position concerning extraterritorial application of the Convention and specifically acknowledged that it applies to Guantanamo Bay, as well as US registered ships and aircraft.149

3.3  The Absolute Nature of the Prohibition of Torture

57  The prohibition of torture and cruel, inhuman or degrading treatment is one of the few absolute human rights. Both torture and cruel, inhuman or degrading treatment are prohibited, without any exception, in Article 7 CCPR and similar provisions in regional human rights treaties. This absolute prohibition is also regarded as customary international law and even ius cogens.150 Furthermore, Article 4(2) CCPR provides that even in times of public emergency threatening the life of the nation, no derogation from the absolute prohibition of torture and cruel, inhuman or degrading treatment may be made. Consequently, Article 3 of the 1975 Declaration and Article 2(2) of the original Swedish draft provided that no exceptional circumstances whatsoever may be invoked as a justification of torture or cruel, inhuman or degrading treatment. In written comments, the delegation of the United States in 1979 proposed a new article providing that there is no justification for an act of torture. The United States argued, however, that cruel, inhuman or degrading treatment was a relative term and what might constitute cruel, inhuman or degrading treatment in times of peace ‘might not rise to that level during emergency situations’.151 Although the Holy See had welcomed the broader text of the Swedish draft ‘in light of certain schools of thought which seek to give national security priority over the rights of the person’,152 the US position seemed to have been accepted by the drafters without much opposition. The revised Swedish draft on which the final text of Article 2(2) CAT is based no longer contained any reference to cruel, inhuman or degrading treatment, which means that there is no explicit provision in the Convention that prohibits any derogation from the prohibition of cruel, inhuman or degrading treatment. However, since the Preamble of the Convention clearly refers to the existing standards under the CCPR and the 1975 Declaration and affirms the desire of the drafters to make more effective (and not less effective) the struggle against torture and cruel, inhuman or degrading treatment, one should not give too much weight to this retrogressive provision. The Committee has in the meantime also confirmed that the prohibition of cruel, inhuman and degrading treatment is non-derogable.153 In addition, Article 16(2) (p. 92) CAT contains an explicit savings clause in relation to other treaty provisions prohibiting cruel, inhuman or degrading treatment.154

58  The prohibition of torture is both an absolute and a non-derogable right. Both concepts are sometimes confused. Not all absolute rights are at the same time non-derogable, and not all non-derogable rights are at the same time absolute. A human right is considered as absolute if, under normal circumstances, no limitations are permitted, ie the Government is not authorized by a specific limitation clause to balance the individual claim against certain State interests. A human right is considered non-derogable if States, under exceptional circumstances, are not permitted to derogate from their respective treaty obligations in relation to this right.

59  The absolute prohibition of torture, therefore, means that, under normal circumstances, torture must not be balanced against any other interest, including national security or the protection of human rights of others. All attempts to justify the practice of torture in the ‘war against global terrorism’ in order to extract information from a suspected terrorist for the purpose of, for example, saving the life of innocent civilians who are in danger of being subjected to an imminent terrorist attack (the so-called ‘ticking bomb’ scenario), clearly violate the absolute prohibition of torture as laid down in Article 2(2) CAT and Article 7 CCPR.155 Accordingly, during the consideration of the US report in May 2006, the Committee urged the US Government to ensure that any interrogation rules, instructions, or methods ‘do not derogate from the principle of absolute prohibition of torture’.156 Similarly, Israel has been repeatedly criticized for undermining the absolute prohibition of torture by having authorized ‘moderate physical pressure’ against suspected terrorists.157