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Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Part I Substantive Articles, Art.6 Procedural Safeguards During the Preliminary Investigation Phase

Roland Schmidt

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: 10 December 2023

Subject(s):
Torture — Treaties, interpretation — Jurisdiction of states, nationality principle — Jurisdiction of states, territoriality principle — Jurisdiction of states, universality principle

(p. 249) Article 6  Procedural Safeguards During the Preliminary Investigation Phase

  1. 1.  Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offence referred to in article 4 is present shall take him into custody or take other legal measures to ensure his presence. The custody and other legal measures shall be as provided in the law of that State but may be continued only for such time as is necessary to enable any criminal or extradition proceedings to be instituted.

  2. 2.  Such State shall immediately make a preliminary inquiry into the facts.

  3. 3.  Any person in custody pursuant to paragraph 1 of this article shall be assisted in communicating immediately with the nearest appropriate representative of the State of which he is a national, or, if he is a stateless person, to the representative of the State where he usually resides.

  4. 4.  When a State, pursuant to this article, has taken a person into custody, it shall immediately notify the States referred to in article 5, paragraph 1, of the fact that such person is in custody and of the circumstances which warrant his detention. The State which makes the preliminary inquiry contemplated in paragraph 2 of this article shall promptly report its findings to the said States and shall indicate whether it intends to exercise jurisdiction.

(p. 250) 1.  Introduction1

1  Articles 6 to 9 are closely linked to the obligation of States parties under Article 5 to establish jurisdiction over the offence of torture in accordance with the territoriality, flag, nationality, and universal jurisdiction principles. Although Articles 6 to 9 are particularly relevant to universal jurisdiction, these provisions in principle apply to all types of jurisdiction laid down in Article 5.

2  Most of the procedural safeguards provided for in Article 6 are fairly self-evident. If the suspected torturer is present in the territory of the State which initiates criminal proceedings (the presence is a legal requirement only for exercising universal jurisdiction under the Convention against Torture), its authorities shall take him or her into custody or take other legal measures to ensure his or her presence. The cases of Al-Duri2 and Almatov3 illustrate that Governments are not always aware of their obligation to arrest any suspected torturer present in their territories or, for diplomatic or political reasons, choose not to take the measures required under international law. The Ould Dah4 case shows that non-custodial measures may not be sufficient to ensure the presence of a suspected torturer.

3  After having taken the necessary measures to ensure the presence of the suspected torturer, the criminal investigation authorities shall make a preliminary inquiry into the facts, and report the findings of such an inquiry to other States which may be interested or obliged under the Convention to exercise jurisdiction, such as the territorial State or the States of which the suspected torturer or the torture victims are nationals. The suspected torturer shall also be granted the right to communicate with consular or diplomatic representatives of his or her State. The immediate obligation to notify other States parties of any custody and inquiries serves the purposes of protecting the rights of the accused as well as of facilitating possible extradition requests in accordance with Articles 7 and 8.

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

4  Convention for the Suppression of Unlawful Seizure of Aircraft (Hague Hijacking Convention 16 December 1970)5

Article 6

  1. 1.  Upon being satisfied that the circumstances so warrant, any Contracting State in the territory of which the offender or the alleged offender is present, shall take him (p. 251) into custody or take other measures to ensure his presence. The custody and other measures shall be as provided in the law of that State but may only be continued for such time as is necessary to enable any criminal or extradition proceedings to be instituted.

  2. 2.  Such State shall immediately make a preliminary enquiry into the facts.

  3. 3.  Any person in custody pursuant to paragraph 1 of this Article shall be assisted in communicating immediately with the nearest appropriate representative of the State of which he is a national.

  4. 4.  When a State, pursuant to this Article, has taken a person into custody, it shall immediately notify the State of registration of the aircraft, the State mentioned in Article 4, paragraph 1(c), the State of nationality of the detained person and, if it considers it advisable, any other interested States of the fact that such person is in custody and of the circumstances which warrant his detention. The State which makes the preliminary enquiry contemplated in paragraph 2 of this Article shall promptly report its findings to the said States and shall indicate whether it intends to exercise jurisdiction.

5  United States Draft (19 December 1978)6

  1. 1.  Upon being satisfied that the circumstances so warrant, any State Party in whose territory an alleged offender under article 1 or article 2 is present shall take the appropriate measures under its internal law so as to ensure his presence for the purpose of prosecution or extradition. Such measures shall be notified directly or through the Secretary-General of the United Nations to:

  2. a)  the States referred to in article 8(1)(a) and (b); and

  3. b)  all other States concerned.

  4. 2.  Any person regarding whom the measures referred to in paragraph 1 of this article are being taken shall be entitled:

  5. a)  to communicate without delay with the nearest appropriate representative of the State of which he is a national or which is otherwise entitled to protect his rights, if he is a stateless person, which he requests and which is willing to protect his rights; and;

  6. b)  to be visited by a representative of that State.

  7. 3.  The State Party in whose territory the alleged offender is present shall immediately make a preliminary inquiry into the facts and promptly report to the States specified in article 8(1)(a) and (b) these facts and whether it intends to exercise jurisdiction.

6  Revised Swedish Draft (19 February 1979)7

Article 6

  1. 1.  Upon being satisfied that the circumstances so warrant, any State Party in whose jurisdiction a person alleged to have committed any offence referred to in article 4 is present, shall take him into custody or take other measures to ensure his presence. The custody and other measures shall be as provided in the law of that State but may (p. 252) be continued only for such time as is necessary to enable any criminal or extradition proceedings to be instituted.

  2. 2.  Such State shall immediately make a preliminary enquiry into the facts.

  3. 3.  Any person in custody pursuant to paragraph 1 of this Article shall be assisted in communicating immediately with the nearest appropriate representative of the State of which he is a national.

  4. 4.  When a State, pursuant to this Article, has taken a person into custody, it shall immediately notify the States referred to in Article 5, paragraph 1, of the fact that such person is in custody and of the circumstances which warrant his detention. The State which makes the preliminary enquiry contemplated in paragraph 2 of this Article shall promptly report its findings to the said State and shall indicate whether it intends to exercise jurisdiction.

  5. 5.  Any person regarding whom proceedings are being carried out in connection with any of the offences referred to in Article 4 shall be guaranteed fair treatment at all stages of the proceedings.

2.2  Analysis of Working Group Discussions

7  Article 6 was inserted in the revised Swedish draft on the basis of a proposal by the United States and on informal consultations. It has no equivalent in the original Swedish draft.8 In written comments on Article 14 of the original Swedish draft the United States had proposed a new article, based on similar articles in the Hijacking, Sabotage and Protection of Diplomats Conventions, designed to establish procedural safeguards during the preliminary investigation phase. Article 6 would require the apprehending State to notify other concerned States of the results of its preliminary investigation, and its intention regarding prosecution or extradition, as well as guaranteeing the accused the right to communicate with the State entitled to protect his or her rights.

8  During the 1980 Working Group several delegates pointed out that the word ‘preliminary’ used in Article 6(2) might give the impression that the actions described in paragraph 1 had been carried out without the necessary examination.9 It was suggested that paragraph 2 should be incorporated into paragraph 1. Some delegates proposed the insertion of the words ‘preliminary enquiry’ into paragraph 1 and the substitution of the words ‘further’ or ‘formal’ for the word ‘preliminary’ in paragraph 2. It was agreed that the proposed phrase ‘after an examination of information available to it’ should be added after the word ‘satisfied’ in paragraph 1.

9  One view was that the phrase ‘other measures’, contained in paragraph 1, might be interpreted too widely. It was suggested that it be replaced by ‘other legal measures’. Similarly in the French text, it was suggested that the word ‘légales’ be replaced by the word ‘juridiques’.

10  One representative, referring to a similar paragraph in the New York Hostages Convention, proposed to extend the scope of paragraph 3 to stateless persons by adding the phrase ‘or, if he is a stateless person, to the representative of the State where he usually resides’ after the word ‘national’.

11  It was decided that discussion on paragraph 4 would be suspended until after consideration of the question of jurisdiction in Articles 5 and 7 since there was no clear link (p. 253) between paragraph 4 dealing with notification to States having jurisdiction under Article 5(1) and Articles 5 and 7.

12  Article 6(1), (2), (3), and (5), as adopted by consensus by the Working Group, read as follows:

  1. 1.  Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offence referred to in article 4 is present, shall take him into custody or take other legal measures to ensure his presence. The custody and other legal measures shall be as provided in the law of that State but may be continued only for such time as is necessary to enable any criminal or extradition proceedings to be instituted.

  2. 2.  Such State shall immediately make a preliminary enquiry into the facts.

  3. 3.  Any person in custody pursuant to paragraph 1 of this article shall be assisted in communicating immediately with the nearest appropriate representative of the State of which he is a national, or, if he is a stateless person, to the representative of the State where he usually resides.

  4. 4.  [When a State, pursuant to this article, has taken a person into custody, it shall immediately notify the States referred to in article 5, paragraph 1, of the fact that such person is in custody and of the circumstances which warrant his detention. The State which makes the preliminary enquiry contemplated in paragraph 2 of this article shall promptly report its findings to the said States and shall indicate whether it intends to exercise jurisdiction.]

  5. 5.  Any person regarding whom proceedings are being carried out in connexion with any of the offences referred to in Article 4 shall be guaranteed fair treatment at all stages of the proceedings.

13  The 1981 Working Group examined paragraph 4.10 No decision was taken because this paragraph was connected with the question of universal jurisdiction and certain members considered that Articles 5 and 7 should be adopted first. It was decided that paragraph 5 of Article 6 should be transferred to Article 7 when the remainder of Article 7 had been adopted.11 The Working Group decided to retain Article 6 as drafted and to revert to it later.

14  In 1982 the Working Group again concluded that Article 6(4) should not be considered separately from Article 7.12 At the conclusion of the discussion on Article 7, it was noted that those delegations which could support the provisions of Article 7 could accept paragraph 4 of Article 6. The decision of the previous year’s Working Group to include paragraph 5 of Article 6 in Article 7 after adoption of that article as a whole was confirmed.

15  In 1984, the Working Group eventually achieved consensus on and adopted Article 6(4) as it stood.13

3.  Issues of Interpretation

3.1  Article 6(1): Obligation to Ensure the Presence of the Alleged Torturer

3.1.1  Examination of Information Available

16  Article 6(1) stipulates that as soon as a State party’s authorities have credible information that an alleged torturer is present in its territory, they shall take him or her (p. 254) into custody or take other legal measures to ensure his or her presence during the preliminary phase of the investigation, which might lead to formal criminal or extradition proceedings.

17  The obligation to ensure the presence of the alleged torturer arises only once the State party has been ‘satisfied, after an examination of information available to it, that the circumstances so warrant’. This introductory phrase of Article 6(1) makes clear that States parties have a ‘wide degree of freedom to assess whether or not the circumstances warrant such a measure’,14 including in their evaluation of the information submitted by eg victims, relatives, or non-governmental organizations.

18  While this discretion is meant to provide the necessary investigatory and prosecutorial flexibility required by the details of each individual case, it also risks being abused by States wishing to avoid their responsibility to exercise jurisdiction in accordance with Articles 5 and 7. By resorting to an excessive interpretation of Article 6(1) States might try to justify their decision not to investigate an alleged torturer, for example due to political considerations, by simply asserting that the information available was not credible or did not provide enough evidence to warrant an investigation. Although relevant for all jurisdictions stipulated in Article 5, the provision is particularly relevant for universal jurisdiction cases in which a few days or even only hours of delay may suffice for an alleged torturer to leave the country and hence enjoy impunity.

19  Against this background, it is important to emphasize that under Article 6(1) the information provided to the State party is merely required to raise the suspicion to a level that a further investigation by the competent authorities is warranted. The ‘information available’ to which Article 6(1) refers is not required to live up to any evidentiary standards as demanded in a criminal trial. Furthermore, when considering the available information at this stage, the State party is also not required to do so as part of a full-fledged investigation, but as part of an initial, critical analysis which is suitable to assess the allegation’s credibility and decide whether there is enough suspicion that warrants further scrutiny. Hence, under Article 6(1) the State authorities are not yet tasked to decide whether to initiate a formal criminal investigation into the case and put the alleged perpetrator in pre-trial detention. The purpose of Article 6(1) is first and foremost to ensure, if the allegations have been considered sufficiently credible, that the alleged perpetrator cannot abscond while the authorities facilitate the initiation of a preliminary investigation as required under Article 6(2) at the end of which the authorities will decide whether or not to charge the alleged perpetrator.

3.1.1.1  HBA et al v Canada

20  Although eventually ruled inadmissible, the discretion of a State party regarding its obligations under Article 6(1) was at the core of the allegations raised in the case HBA et al v Canada before the Committee against Torture in 2013.15 In 2011, the counsel of the four complainants sought to initiate the prosecution of former US President George W. Bush under universal jurisdiction at the occasion of his upcoming trip to Canada. The four men alleged to have been tortured in secret places of detention by or at the acquiescence (p. 255) of US officials in the context of the so-called ‘war on terror’. In anticipation of Mr. Bush’s visit, the men’s counsel submitted a comprehensive dossier to the Attorney General of Canada and called upon him to launch a criminal investigation into the role of the former President in authorizing and overseeing the US administration’s torture programme. In the absence of any reply from the Attorney General,16 the counsel attempted to initiate a private prosecution as provided under Canadian law. The responsible Justice of Peace, however, refused to receive the pertaining complaint on the grounds that Mr. Bush was at that point not yet present on Canadian territory. Eventually, two days later on 20 October 2011 and with Mr. Bush present in Canada, the counsel was able to submit the complaint seeking private prosecution. The Justice of Peace scheduled a hearing for January 2012 in order to verify the allegations, by which point Bush would already have left Canada. However, still on 20 October, the Attorney General of British Columbia used his authority to intervene in private prosecutions and directed a stay of the proceedings against Mr. Bush. The stay of the private prosecution was argued to be warranted since the required consent from the Attorney General of Canada was expected not to be granted. Consequently, Mr. Bush was able to visit Canada without ever being approached by the Canadian authorities in relation to the torture allegations.

21  Against this background, the complainants argued before the Committee that Canada had breached its obligations under Article 6(1) as well as Articles 5(2) and 7(1). Regarding Article 6(1), the complainants argued that Canada would have been required, following an examination of the information dossier provided to the authorities, to ensure the continuing presence of Mr. Bush and to initiate an investigation.17 In response, Canada argued that the obligation under Article 6(1) to take measures to ensure the continuing presence of the alleged perpetrator is not absolute, and that there may be occasions when the circumstances do not warrant ensuring the presence for the purpose of criminal proceedings.18 The decision not to arrest or to ensure the presence of Mr. Bush by non-custodial means was, according to the State party, within its investigative and prosecutorial discretion, which allows to not follow up on a complaint.19

(p. 256) 22  Since the Committee against Torture ruled the case inadmissible as it would not fall within the scope of Article 22,20 no authoritative decision on the merits of the case is available. Notwithstanding this caveat, the substantive arguments put forward by the State party warrant some critical remarks.21 As correctly raised by Canada, Article 6(1) grants the State party some discretion when it comes to deciding whether to ensure the continuing presence of the alleged perpetrator on its territory. Obviously, this discretion has however its limits.

23  Article 6(1) states that a State party’s decision whether to ensure the continuing presence of an alleged perpetrator must be preceded by an examination of the ‘information available’. In relation to the information submitted by the complainants’ counsel to the Attorney General about a month prior to the visit of Mr. Bush, the State party stated that the timing and volume of the submission would not have permitted a ‘thorough investigation’.22 Furthermore, the State party argued that

[w]here an alleged perpetrator is in transit through a State or a temporary visitor rather than someone resident in the State, it is unlikely that the forum State will have undertaken an investigation in advance, proprio motu, in the hope or expectation that the alleged perpetrator might transit through or make a short visit.23

Consequently, the case HBA et al v Canada would be different than the Habré case in which the Committee found Senegal to have violated its obligation under Article 6(1).

24  Canada is correct when it refers to Nowak and McArthur (2008) who state that the decision not to initiate a prosecution does not amount to a violation of Article 7(1), if the competent authorities are of the view that there is insufficient evidence to obtain a conviction.24 The State party, however, ignores that this discretion is premised on the competent authorities having already conducted an investigation which was implemented in such a way that it had indeed the potential to produce such evidence, if it exists. For an investigation to be possible, however, Canada would have been required under Article 6(1) to arrest or take other measures to ensure the presence of Mr. Bush. By the State party’s own admission, however, such investigation has never taken place since it was considered that ‘there was no realistic prospect [ … ] that sufficient evidence to support a charge against Mr. Bush could have been assembled so as to justify detention’.25

25  By taking the lack of a ‘realistic prospect’ as a foregone conclusion the State implicitly argues to have no further obligations under the Convention and hence does not violate it. Whether there was indeed no ‘realistic prospect’ to prosecute is questionable, since an investigation was never started, cooperation of the US authorities was never sought, and potential avenues which would not have required cooperation of the US were never (p. 257) pursued. Furthermore, and somewhat circularly, the State party argues that it would require the results of an investigation in order to decide whether to ensure the presence of Bush, but at the same time acknowledges that no investigation was initiated since it was unlikely to obtain the cooperation of the US authorities.

26  The State party’s claims suggest that it considered it as necessary to conduct a full and in-depth review of the dossier submitted by the counsel, before being in the position to decide whether to ensure the continuing presence of the former US President. This reading is misguided. While the State party obviously has to disregard unsubstantiated allegations, the information available at this stage does not have to conclusively prove the raised allegations, let alone live up to evidentiary standards as required in a criminal trial. The purpose of the examination required under Article 6(1) is to establish whether the raised allegations are credibly substantiated to such a level that the initiation of a formal criminal investigation is warranted.

27  The interpretation of Article 6(1) put forward by Canada in the HBA et al v Canada case would result in a considerable weakening of the Convention regarding its intent to close safe havens. This would be particularly the case when the suspected torturer is present only for a brief period on the territory under the jurisdiction of the State party. Put together, the limitation to initiate an investigation only from the moment when the alleged perpetrator is present, on the one hand, and the requirement of the availability of results of a thorough criminal investigation before being able to ensure the alleged perpetrator’s presence, on the other hand, would de facto result in a ‘blind spot’ in the obligation to prosecute torturers. Cases, in which the alleged perpetrator is only briefly on the territory under the jurisdiction of the State party would become unlikely to be ever prosecuted.

3.1.2  Custody or Other Legal Measures to Ensure Presence

28  Since torture is a serious crime that, according to Article 4(2), shall be punishable by appropriate penalties which take into account its grave nature, the measures necessary to ensure the presence of the alleged torturer usually mean arrest and detention that is police custody up to a few days followed by pre-trial detention and/or detention pending deportation.

29  On the other hand, States should take into account that, by virtue of Article 9(3) CCPR, it ‘shall not be the general rule that persons awaiting trial shall be detained in custody’. Article 6(1) CAT therefore also provides for the possibility to make use of ‘other legal measures’ to ensure the presence of the alleged torturer, including house arrest, release on bail, the confiscation of travel documents, an obligation to report regularly to the police, and similar restrictions on freedom of movement.26 Whether or not custodial measures are necessary depends on the particular circumstances of the case, such as the likelihood that the suspected torturer might flee from the jurisdiction of the State, (p. 258) abscond, or destroy evidence.27 If the person is detained, he or she must enjoy all the rights of detained persons, above all habeas corpus rights.

30  The original US draft did not mention ‘custody’ but only the general obligation of States parties to ‘take the appropriate measures under its internal law so as to ensure his presence for the purpose of prosecution or extradition’.28 The revised Swedish draft replaced this formulation by ‘custody and other measures to ensure his presence’ and deleted the explicit reference to the purpose of such measures. During the discussions in the Working Group, the word ‘legal’ was added before ‘measures’. This means that States parties are expected to take the same measures as are provided for in their domestic law in the case of any ordinary offence of a serious nature. This principle is expressed in the last sentence of Article 6(1) and reaffirmed in Article 7(2) for the next phase of decision-making.

3.1.2.1  Almatov Case (Germany)

31  The visit of then Uzbek Minister of Interior Zokir Almatov to Germany and the failure of the German authorities to secure Almatov’s presence is another instructive example for the challenges to ensure the implement