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Appendices, Appendix A Texts relating to the Convention Against Torture

Manfred Nowak, Moritz Birk, Giuliana Monina

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

Edited By: Manfred Nowak, Moritz Birk, Giuliana Monina

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 26 November 2021

(p. 1035) Appendix A  Texts relating to the Convention Against Torture

Appendix A.1  Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Adopted and opened for signature, ratification and accession by General Assembly Resolution 39/46 of 10 December 1984

Entered into force on 26 June 1987, in accordance with Article 27 (1)

Preamble

The States Parties to this Convention,

Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Recognizing that those rights derive from the inherent dignity of the human person,

Considering the obligation of States under the Charter, in particular Article 55, to promote universal respect for, and observance of, human rights and fundamental freedoms,

Having regard to article 5 of the Universal Declaration of Human Rights and article 7 of the International Covenant on Civil and Political Rights, both of which provide that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment,

Having regard also to the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the General Assembly on 9 December 1975,

Desiring to make more effective the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world,

Have agreed as follows:

Part I

Article 1

  1. 1.  For the purposes of this Convention, the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

  2. (p. 1036) 2.  This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.

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 in stability 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.

Article 3

  1. 1.  No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

  2. 2.  For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

Article 4

  1. 1.  Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.

  2. 2.  Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.

Article 5

  1. 1.  Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases:

    1. (a)  When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State;

    2. (b)  When the alleged offender is a national of that State;

    3. (c)  When the victim is a national of that State if that State considers it appropriate.

  2. 2.  Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in paragraph I of this article.

  3. 3.  This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law.

Article 6

  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. (p. 1037) 3.  Any person in custody pursuant to paragraph I 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, with 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.

Article 7

  1. 1.  The State Party in the territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.

  2. 2.  These authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State. In the cases referred to in article 5, paragraph 2, the standards of evidence required for prosecution and conviction shall in no way be less stringent than those which apply in the cases referred to in article 5, paragraph 1.

  3. 3.  Any person regarding whom proceedings are brought in connection with any of the offences referred to in article 4 shall be guaranteed fair treatment at all stages of the proceedings.

Article 8

  1. 1.  The offences referred to in article 4 shall be deemed to be included as extraditable offences in any extradition treaty existing between States Parties. States Parties undertake to include such offences as extraditable offences in every extradition treaty to be concluded between them.

  2. 2.  If a State Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it has no extradition treaty, it may consider this Convention as the legal basis for extradition in respect of such offences. Extradition shall be subject to the other conditions provided by the law of the requested State.

  3. 3.  States Parties which do not make extradition conditional on the existence of a treaty shall recognize such offences as extraditable offences between themselves subject to the conditions provided by the law of the requested State.

  4. 4.  Such offences shall be treated, for the purpose of extradition between States Parties, as if they had been committed not only in the place in which they occurred but also in the territories of the States required to establish their jurisdiction in accordance with article 5, paragraph 1.

Article 9

  1. 1.  States Parties shall afford one another the greatest measure of assistance in connection with criminal proceedings brought in respect of any of the offences referred to in article 4, including the supply of all evidence at their disposal necessary for the proceedings.

  2. 2.  States Parties shall carry out their obligations under paragraph I of this article in conformity with any treaties on mutual judicial assistance that may exist between them.

Article 10

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

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

(p. 1038) Article 11

Each State Party shall keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture.

Article 12

Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.

Article 13

Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given.

Article 14

  1. 1.  Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation.

  2. 2.  Nothing in this article shall affect any right of the victim or other persons to compensation which may exist under national law.

Article 15

Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.

Article 16

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

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

Part II

Article 17

  1. 1.  There shall be established a Committee against Torture (hereinafter referred to as the Committee) which shall carry out the functions hereinafter provided. The Committee shall (p. 1039) consist of ten experts of high moral standing and recognized competence in the field of human rights, who shall serve in their personal capacity. The experts shall be elected by the States Parties, consideration being given to equitable geographical distribution and to the usefulness of the participation of some persons having legal experience.

  2. 2.  The members of the Committee shall be elected by secret ballot from a list of persons nominated by States Parties. Each State Party may nominate one person from among its own nationals. States Parties shall bear in mind the usefulness of nominating persons who are also members of the Human Rights Committee established under the International Covenant on Civil and Political Rights and who are willing to serve on the Committee against Torture.

  3. 3.  Elections of the members of the Committee shall be held at biennial meetings of States Parties convened by the Secretary-General of the United Nations. At those meetings, for which two thirds of the States Parties shall constitute a quorum, the persons elected to the Committee shall be those who obtain the largest number of votes and an absolute majority of the votes of the representatives of States Parties present and voting.

  4. 4.  The initial election shall be held no later than six months after the date of the entry into force of this Convention. At least four months before the date of each election, the Secretary-General of the United Nations shall address a letter to the States Parties inviting them to submit their nominations within three months. The Secretary-General shall prepare a list in alphabetical order of all persons thus nominated, indicating the States Parties which have nominated them, and shall submit it to the States Parties.

  5. 5.  The members of the Committee shall be elected for a term of four years. They shall be eligible for re-election if renominated. However, the term of five of the members elected at the first election shall expire at the end of two years; immediately after the first election the names of these five members shall be chosen by lot by the chairman of the meeting referred to in paragraph 3 of this article.

  6. 6.  If a member of the Committee dies or resigns or for any other cause can no longer perform his Committee duties, the State Party which nominated him shall appoint another expert from among its nationals to serve for the remainder of his term, subject to the approval of the majority of the States Parties. The approval shall be considered given unless half or more of the States Parties respond negatively within six weeks after having been informed by the Secretary-General of the United Nations of the proposed appointment.

  7. 7.  States Parties shall be responsible for the expenses of the members of the Committee while they are in performance of Committee duties. (amendment (see General Assembly resolution 47/111 of 16 December 1992); status of ratification)

Article 18

  1. 1.  The Committee shall elect its officers for a term of two years. They may be re-elected.

  2. 2.  The Committee shall establish its own rules of procedure, but these rules shall provide, inter alia, that:

    1. (a)  Six members shall constitute a quorum;

    2. (b)  Decisions of the Committee shall be made by a majority vote of the members present.

  3. 3.  The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Committee under this Convention.

  4. 4.  The Secretary-General of the United Nations shall convene the initial meeting of the Committee. After its initial meeting, the Committee shall meet at such times as shall be provided in its rules of procedure.

  5. 5.  The States Parties shall be responsible for expenses incurred in connection with the holding of meetings of the States Parties and of the Committee, including reimbursement to the United Nations for any expenses, such as the cost of staff and facilities, incurred by the United Nations pursuant to paragraph 3 of this article. (amendment (see General Assembly Resolution 47/111 of 16 December 1992); status of ratification)

(p. 1040) Article 19

  1. 1.  The States Parties shall submit to the Committee, through the Secretary-General of the United Nations, reports on the measures they have taken to give effect to their undertakings under this Convention, within one year after the entry into force of the Convention for the State Party concerned. Thereafter the States Parties shall submit supplementary reports every four years on any new measures taken and such other reports as the Committee may request.

  2. 2.  The Secretary-General of the United Nations shall transmit the reports to all States Parties.

  3. 3.  Each report shall be considered by the Committee which may make such general comments on the report as it may consider appropriate and shall forward these to the State Party concerned. That State Party may respond with any observations it chooses to the Committee.

  4. 4.  The Committee may, at its discretion, decide to include any comments made by it in accordance with paragraph 3 of this article, together with the observations thereon received from the State Party concerned, in its annual report made in accordance with article 24. If so requested by the State Party concerned, the Committee may also include a copy of the report submitted under paragraph I of this article

Article 20

  1. 1.  If the Committee receives reliable information which appears to it to contain well-founded indications that torture is being systematically practised in the territory of a State Party, the Committee shall invite that State Party to co-operate in the examination of the information and to this end to submit observations with regard to the information concerned.

  2. 2.  Taking into account any observations which may have been submitted by the State Party concerned, as well as any other relevant information available to it, the Committee may, if it decides that this is warranted, designate one or more of its members to make a confidential inquiry and to report to the Committee urgently.

  3. 3.  If an inquiry is made in accordance with paragraph 2 of this article, the Committee shall seek the co-operation of the State Party concerned. In agreement with that State Party, such an inquiry may include a visit to its territory.

  4. 4.  After examining the findings of its member or members submitted in accordance with paragraph 2 of this article, the Commission shall transmit these findings to the State Party concerned together with any comments or suggestions which seem appropriate in view of the situation.

  5. 5.  All the proceedings of the Committee referred to in paragraphs I to 4 of this article shall be confidential, and at all stages of the proceedings the co-operation of the State Party shall be sought. After such proceedings have been completed with regard to an inquiry made in accordance with paragraph 2, the Committee may, after consultations with the State Party concerned, decide to include a summary account of the results of the proceedings in its annual report made in accordance with article 24.

Article 21

  1. 1.  A State Party to this Convention may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under this Convention. Such communications may be received and considered according to the procedures laid down in this article only if submitted by a State Party which has made a declaration recognizing in regard to itself the competence of the Committee. No communication shall be dealt with by the Committee under this article if it concerns a State Party which has not made such a declaration. Communications received under this article shall be dealt with in accordance with the following procedure;(p. 1041)

    1. (a)  If a State Party considers that another State Party is not giving effect to the provisions of this Convention, it may, by written communication, bring the matter to the attention of that State Party. Within three months after the receipt of the communication the receiving State shall afford the State which sent the communication an explanation or any other statement in writing clarifying the matter, which should include, to the extent possible and pertinent, reference to domestic procedures and remedies taken, pending or available in the matter;

    2. (b)  If the matter is not adjusted to the satisfaction of both States Parties concerned within six months after the receipt by the receiving State of the initial communication, either State shall have the right to refer the matter to the Committee, by notice given to the Committee and to the other State;

    3. (c)  The Committee shall deal with a matter referred to it under this article only after it has ascertained that all domestic remedies have been invoked and exhausted in the matter, in conformity with the generally recognized principles of international law. This shall not be the rule where the application of the remedies is unreasonably prolonged or is unlikely to bring effective relief to the person who is the victim of the violation of this Convention;

    4. (d)  The Committee shall hold closed meetings when examining communications under this article;

    5. (e)  Subject to the provisions of subparagraph (c), the Committee shall make available its good offices to the States Parties concerned with a view to a friendly solution of the matter on the basis of respect for the obligations provided for in this Convention. For this purpose, the Committee may, when appropriate, set up an ad hoc conciliation commission;

    6. (f)  In any matter referred to it under this article, the Committee may call upon the States Parties concerned, referred to in subparagraph (b), to supply any relevant information;

    7. (g)  The States Parties concerned, referred to in subparagraph (b), shall have the right to be represented when the matter is being considered by the Committee and to make submissions orally and/or in writing;

    8. (h)  The Committee shall, within twelve months after the date of receipt of notice under subparagraph (b), submit a report:

      1. (i)  If a solution within the terms of subparagraph (e) is reached, the Committee shall confine its report to a brief statement of the facts and of the solution reached;

      2. (ii)  If a solution within the terms of subparagraph (e) is not reached, the Committee shall confine its report to a brief statement of the facts; the written submissions and record of the oral submissions made by the States Parties concerned shall be attached to the report.

    In every matter, the report shall be communicated to the States Parties concerned.

  2. 2.  The provisions of this article shall come into force when five States Parties to this Convention have made declarations under paragraph 1 of this article. Such declarations shall be deposited by the States Parties with the Secretary-General of the United Nations, who shall transmit copies thereof to the other States Parties. A declaration may be withdrawn at any time by notification to the Secretary-General. Such a withdrawal shall not prejudice the consideration of any matter which is the subject of a communication already transmitted under this article; no further communication by any State Party shall be received under this article after the notification of withdrawal of the declaration has been received by the Secretary-General, unless the State Party concerned has made a new declaration.

Article 22

  1. 1.  A State Party to this Convention may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim to be victims of a violation by a State Party (p. 1042) of the provisions of the Convention. No communication shall be received by the Committee if it concerns a State Party which has not made such a declaration.

  2. 2.  The Committee shall consider inadmissible any communication under this article which is anonymous or which it considers to be an abuse of the right of submission of such communications or to be incompatible with the provisions of this Convention.

  3. 3.  Subject to the provisions of paragraph 2, the Committee shall bring any communications submitted to it under this article to the attention of the State Party to this Convention which has made a declaration under paragraph I and is alleged to be violating any provisions of the Convention. Within six months, the receiving State shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by that State.

  4. 4.  The Committee shall consider communications received under this article in the light of all information made available to it by or on behalf of the individual and by the State Party concerned.

  5. 5.  The Committee shall not consider any communications from an individual under this article unless it has ascertained that:

    1. (a)  The same matter has not been, and is not being, examined under another procedure of international investigation or settlement;

    2. (b)  The individual has exhausted all available domestic remedies; this shall not be the rule where the application of the remedies is unreasonably prolonged or is unlikely to bring effective relief to the person who is the victim of the violation of this Convention.

  6. 6.  The Committee shall hold closed meetings when examining communications under this article.

  7. 7.  The Committee shall forward its views to the State Party concerned and to the individual.

  8. 8.  The provisions of this article shall come into force when five States Parties to this Convention have made declarations under paragraph 1 of this article. Such declarations shall be deposited by the States Parties with the Secretary-General of the United Nations, who shall transmit copies thereof to the other States Parties. A declaration may be withdrawn at any time by notification to the Secretary-General. Such a withdrawal shall not prejudice the consideration of any matter which is the subject of a communication already transmitted under this article; no further communication by or on behalf of an individual shall be received under this article after the notification of withdrawal of the declaration has been received by the Secretary General, unless the State Party has made a new declaration.

Article 23

The members of the Committee and of the ad hoc conciliation commissions which may be appointed under article 21, paragraph I (e), shall be entitled to the facilities, privileges and immunities of experts on mission for the United Nations as laid down in the relevant sections of the Convention on the Privileges and Immunities of the United Nations.

Article 24

The Committee shall submit an annual report on its activities under this Convention to the States Parties and to the General Assembly of the United Nations.

Part III

Article 25

  1. 1.  This Convention is open for signature by all States.

  2. (p. 1043) 2.  This Convention is subject to ratification. Instruments of ratification shall be deposited with the Secretary-General of the United Nations.

Article 26

This Convention is open to accession by all States. Accession shall be effected by the deposit of an instrument of accession with the Secretary General of the United Nations.

Article 27

  1. 1.  This Convention shall enter into force on the thirtieth day after the date of the deposit with the Secretary-General of the United Nations of the twentieth instrument of ratification or accession.

  2. 2.  For each State ratifying this Convention or acceding to it after the deposit of the twentieth instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after the date of the deposit of its own instrument of ratification or accession.

Article 28

  1. 1.  Each State may, at the time of signature or ratification of this Convention or accession thereto, declare that it does not recognize the competence of the Committee provided for in article 20.

  2. 2.  Any State Party having made a reservation in accordance with paragraph I of this article may, at any time, withdraw this reservation by notification to the Secretary-General of the United Nations.

Article 29

  1. 1.  Any State Party to this Convention may propose an amendment and file it with the Secretary-General of the United Nations. The Secretary General shall thereupon communicate the proposed amendment to the States Parties with a request that they notify him whether they favour a conference of States Parties for the purpose of considering and voting upon the proposal. In the event that within four months from the date of such communication at least one third of the States Parties favours such a conference, the Secretary General shall convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of the States Parties present and voting at the conference shall be submitted by the Secretary-General to all the States Parties for acceptance.

  2. 2.  An amendment adopted in accordance with paragraph I of this article shall enter into force when two thirds of the States Parties to this Convention have notified the Secretary-General of the United Nations that they have accepted it in accordance with their respective constitutional processes.

  3. 3.  When amendments enter into force, they shall be binding on those States Parties which have accepted them, other States Parties still being bound by the provisions of this Convention and any earlier amendments which they have accepted.

Article 30

  1. 1.  Any dispute between two or more States Parties concerning the interpretation or application of this Convention which cannot be settled through negotiation shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the Parties are unable to agree on the organization of the arbitration, any one of those Parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court.

  2. 2.  Each State may, at the time of signature or ratification of this Convention or accession thereto, declare that it does not consider itself bound by paragraph I of this article. The other States (p. 1044) Parties shall not be bound by paragraph I of this article with respect to any State Party having made such a reservation.

  3. 3.  Any State Party having made a reservation in accordance with paragraph 2 of this article may at any time withdraw this reservation by notification to the Secretary-General of the United Nations.

Article 31

  1. 1.  A State Party may denounce this Convention by written notification to the Secretary-General of the United Nations. Denunciation becomes effective one year after the date of receipt of the notification by the Secretary-General.

  2. 2.  Such a denunciation shall not have the effect of releasing the State Party from its obligations under this Convention in regard to any act or omission which occurs prior to the date at which the denunciation becomes effective, nor shall denunciation prejudice in any way the continued consideration of any matter which is already under consideration by the Committee prior to the date at which the denunciation becomes effective.

  3. 3.  Following the date at which the denunciation of a State Party becomes effective, the Committee shall not commence consideration of any new matter regarding that State.

Article 32

The Secretary-General of the United Nations shall inform all States Members of the United Nations and all States which have signed this Convention or acceded to it of the following:

  1. (a)  Signatures, ratifications and accessions under articles 25 and 26;

  2. (b)  The date of entry into force of this Convention under article 27 and the date of the entry into force of any amendments under article 29;

  3. (c)  Denunciations under article 31.

Article 33

  1. 1.  This Convention, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations.

  2. 2.  The Secretary-General of the United Nations shall transmit certified copies of this Convention to all States.

(p. 1045) Appendix A.2  Selected Draft Convention Texts

Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Declaration)

(9 December 1975)1

The General Assembly,

Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Considering that these rights derive from inherent dignity of the human person,

Considering also the obligation of States under the Charter, in particular Article 55, to promote universal respect for, and observance of, human rights and fundamental freedoms,

Having regard to Article 5 of the Universal Declaration of Human Rights and Article 7 of the International Covenant on Civil and Political Rights, both of which provide that no one may be subjected to torture or to cruel, inhuman or degrading treatment or punishment,

Adopts the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the text of which is annexed to the present resolution, as a guideline for all States and other entities exercising effective power.

Annex

Article 1

  1. 1.  For the purpose of this Declaration, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purposes as obtaining from him or a third person information or confession, punishing him for an act he has committed or is suspected of having committed, or intimidating him or other persons. It does not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions to the extent consistent with the Standard Minimum Rules for the Treatment of Prisoners.

  2. 2.  Torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment.

Article 2

Any act of torture or other cruel, inhuman or degrading treatment or punishment is an offence to human dignity and shall be condemned as a denial of the purposes of the Charter of the United Nations and as a violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights.

(p. 1046) 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.

Article 5

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

Article 6

Each State Party shall keep under systematic review interrogation methods and practices as well as arrangements for the custody and treatment of persons deprived of their liberty in its territory, with a view to preventing any cases of torture or other cruel, inhuman or degrading treatment or punishment.

Article 7

Each State Party shall ensure that all acts of torture as defined in Article 1 are offences under its criminal law. The same shall apply in regard to acts which constitute participation in, complicity in, incitement to or an attempt to commit torture.

Article 8

Any person who alleges that he has been subjected to torture or other cruel, inhuman or degrading treatment or punishment by or at the instigation of a public official shall have the right to complain to, and to have his case impartially examined by, the competent authorities of the State concerned.

Article 9

Wherever there is reasonable ground to believe that an act of torture as defined in Article 1 has been committed, the competent authorities of the State concerned shall promptly proceed to an impartial investigation even if there has been no formal complaint.

Article 10

If an investigation under Article 8 or Article 9 establishes than an act of torture as defined in Article 1 appears to have been committed, criminal proceedings shall be instituted against the alleged offender or offenders in accordance with national law. If an allegation of other forms of cruel, inhuman or degrading treatment or punishment is considered to be well founded, (p. 1047) the alleged offender or offenders shall be subject to criminal, disciplinary or other appropriate proceedings.

Article 11

Where it is proved that an act of torture or other cruel, inhuman or degrading treatment or punishment has been committed by or at the instigation of a public official, the victim shall be afforded redress and compensation in accordance with national law.

Article 12

Any statement which is established to have been made as a result of torture or other cruel, inhuman or degrading treatment may not be invoked as evidence against the person concerned or against any other person in any proceedings.

Draft Convention for the Prevention and Suppression of Torture, submitted by the International Association of Penal Law (IAPL Draft)

(15 January 1978)2

The Parties to this Convention hereby agree as hereinafter provided:

Article I  (Torture as an international crime)

Torture is a crime under international law.

Article II  (Definition of torture)

For the purposes of this Convention, torture is any conduct by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person by or at the instigation of a public official or for which a public official is responsible under Article III, in order:

  1. (a)  to obtain from that person or another person information or a statement or confession; or

  2. (b)  to intimidate, discredit or humiliate that person or another person; or

  3. (c)  to inflict punishment on that person or another person, save where such conduct is in proper execution of a lawful sanction not constituting cruel, inhuman or degrading treatment or punishment.

Article III  (Responsibility)

A person is responsible for committing or instigating torture when that person:

  1. (a)  personally engages in or participates in such conduct; or

  2. (b)  assists, incites, solicits, commands or considers with others to commit torture; or

  3. (p. 1048) (c)  being a public official, fails to take appropriate measures to prevent or suppress torture when such person has knowledge or reasonable belief that torture has been or is being committed and has the authority or is in a position to take such measures.

Article IV  (National measures for the prevention an suppression of torture)

The Contracting Parties undertake to adopt legislative, judicial, administrative and other measures necessary to give effect to this convention to prevent and suppress torture, and in particular, to ensure that:

  1. (a)  any act of torture is punishable under its laws as a grave crime;

  2. (b)  their public officials do not practice or permit any form of torture;

  3. (c)  all complaints of torture or any circumstances which give reasonable grounds to believe that torture has been committed shall be investigated speedily and effectively and that complainants shall not be exposed to any sanction by reason of their complaints, unless they have been shown to have been made falsely and maliciously.

  4. (d)  persons believed to be responsible for acts of torture are prosecuted and when found guilty, punished and disciplined in accordance with their laws;

  5. (e)  any victim of torture is afforded adequate and proper redress and compensation;

  6. (f)  no person is expelled or extradited to a State where there are reasonable grounds to believe that that person may be in danger of being tortured; and

  7. (g)  the text of this convention is widely disseminated and its contents made knows to all persons arrested and detained.

Article V  (Superior orders)

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

Article VI  (Non-derogation)

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.

Article VII  (Evidentiary effect)

Any oral or written statement or confession obtained by means of torture or any other evidence derived therefrom shall have no legal effect whatever and shall not be invoked in any judicial or administrative proceedings, except against a person accused of obtaining it by torture.

Article VIII  (Period of limitation)

No prosecution or punishment of torture shall be barred by the application of a period of limitation of lesser duration than that applicable to the most serious offence in the laws of the Contracting Parties.

(p. 1049) Article IX  (Jurisdiction)

  1. 1.  Jurisdiction for the prosecution and punishment of the international crime of torture shall vest in the following order in:

    1. (a)  the contracting Party in whose territory the act occurred;

    2. (b)  any contracting Party of which the accused is a national;

    3. (c)  any Contracting Party of which the victim is a national;

    4. (d)  any Contracting Party within whose territory the accused may be found.

  2. 2.  Nothing in this Article shall be construed as affecting the jurisdiction of any competent international criminal court.

Article X  (Extradition)

  1. 1.  Where a Contracting Party receives a request for extradition from a Contracting Party having prior or concurrent jurisdiction, it shall grant extradition of persons accused of torture in accordance with its laws and treaties in force and subject to the provisions of this Convention.

  2. 2.  In the absence of a treaty of extradition with a requesting Contracting Party, the Contracting Parties undertake to extradite on the basis of this Convention.

  3. 3.  Contracting Parties which do not make extradition conditional on the existence of a treaty shall recognize torture as an extraditable offence.

Article XI  (Co-operation)

The Contracting Parties shall afford one another the greatest measure if judicial and other co-operation in connexion with criminal proceedings brought in implementation of this Convention.

Article XII  (Torture not a Political Offence)

For the purposes of this Convention, torture shall not be deemed a political offence.

Article XIII  (International measure of implementation)

  1. 1.  The Contracting Parties undertake to submit to the Human Rights Committee established under the International Covenant on Civil and Political Rights periodic reports on the legislative, judicial, administrative and other measures they have adopted to implement this Convention.

  2. 2.  The first report of a Contracting Party shall be submitted within one (1) year of the entry into force of the Convention and thereafter a report shall be submitted every two (2) years.

  3. 3.  The Chairman of the Human Rights Committee shall, after consulting the other members of the Committee, appoint a Special Committee on the Prevention of Torture, consisting of five (5) members of the Human Rights Committee who are also nationals of the Contracting Parties to this Convention to consider reports submitted by Contracting Parties in accordance with this Article.

  4. 4.  If, among the members of the Human Rights Committee, there are no nations of Contracting Parties to this Convention or if there are fewer than five such nationals, the (p. 1050) Secretary-General of the United Nations shall, after consulting all Contracting Parties to this Convention, designate a national of the Contracting Party of nationals of the Contracting Parties which are not members of the Human Rights Committee to take part in the work of the Special Committee established in accordance with paragraph 3 of this Article, until such time as sufficient nationals of the Contracting Parties to this Convention are elected to the Human Rights Committee.

  5. 5.  The Special Committee on the Prevention of Torture shall meet not less than once a year for a period of not more than give days, either before the opening or after the closing of sessions of the Human Rights Committee and shall issue an annual report of its findings.

Article XIV  (Settlement of disputes)

Any dispute by Contracting Parties arising out of the interpretation, application or implementation of this Convention which has not been settled by negotiation, arbitration or referral to an independent and impartial body shall, at the request of any party to the dispute, be brought before the International Court of Justice.

Article XV  (Signature and accessions)

  1. 1.  This Convention is open for signature by all States

  2. 2.  Any State which does not sign this Convention before its entry into force may accede to it thereafter.

Article XVI  (Reservations)

No reservations may be made to Article VI of this Convention. The pertinent provisions of the Vienna Convention on the Law of Treaties shall apply with respect to any other reservations.

Article XVII  (Depositing instruments of ratification)

This Convention is subject to ratification. Instruments of ratification shall be deposited with the Secretary-General of the United Nations.

Article XVIII  (Accession)

Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations.

Article XIX  (Entry into Force)

  1. 1.  This Convention shall enter into force on the thirtieth day after the deposit of the tenth instrument of ratification of accession.

  2. 2.  For each State ratifying this Convention or acceding to it after the deposit of the tenth instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after the date of the deposit of its own instrument of ratification of accession.

(p. 1051) Article XX  (Revision)

  1. 1.  A request for the revision of this Convention may be made at any time by any Contracting Party by means of a notification in writing addressed to the Secretary-General of the United Nations.

  2. 2.  The General Assembly by the United Nations shall decide upon the steps, if any, to be taken in respect to such a request.

Article XXI  (Notification)

The Secretary-General of the United Nations shall inform all States of the following particulars:

  1. (1)  Signatures, ratifications, accessions and reservations under Articles XV-XVIII of this Convention;

  2. (2)  The date of entry into force of the present Convention;

  3. (3)  Notification under Article XX of the present Convention.

Article XXII  (Official languages)

This Convention, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations.

Article XXIII  (Transmittal)

The Secretary-General of the United Nations shall transmit certified copies of this Convention to all Contracting Parties.

Draft International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

(Original Swedish Draft)

(18 January 1978)3

(Preamble to be elaborated)

Article 1

  1. 1.  For the purpose of the present Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purposes as obtaining from him or a third person information or confession, punishing him for an act he has committed or is suspected of having committed, or intimidating him or other persons. It does not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions to the extent consistent with the Standard Minimum Rules for the Treatment of Prisoners.

  2. 2.  Torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment.

(p. 1052) 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 other cruel, inhuman or degrading treatment or punishment from being practised within its jurisdiction.

Article 4

No State Party may expel or extradite a person to a State where there are reasonable grounds to believe that he may be in danger of being subjected to torture or other cruel, inhuman or degrading treatment or punishment.

Article 5

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

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

Article 6

Each State Party shall keep under systematic review interrogation methods and practices as well as arrangements for the custody and treatment of persons deprived of their liberty in its territory, with a view to preventing any cases of torture or other cruel, inhuman or degrading treatment or punishment.

Article 7

  1. 1.  Each State Party shall ensure that all acts of torture as defined in Article 1 are offences under its criminal law. The same shall apply in regard to acts which constitute participation in, complicity in, incitement to or an attempt to commit torture.

  2. 2.  Each State Party undertakes to make the offences referred to in paragraph 1 of this Article punishable by severe penalties.

Article 8

  1. 1.  Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in Article 7 in the following cases:

    1. (a)  when the offences are committed in the territory of that State or on board a ship or aircraft registered in that State;

    2. (p. 1053) (b)  when the alleged offender is a national of that State;

    3. (c)  when the victim is a national of that State.

  2. 2.  Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in its territory and it does not extradite him pursuant to Article 14 to any of the States mentioned in paragraph 1 of this Article.

  3. 3.  This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law.

Article 9

Each State Party shall guarantee to any individual who alleges to have been subjected within its jurisdiction to torture or other cruel, inhuman or degrading treatment or punishment by or at the instigation of its public officials, the right to complain to and to have his case impartially examined by its competent authorities without threat of further torture or other cruel, inhuman or degrading treatment or punishment.

Article 10

Each State Party shall ensure that, even if there has been no formal complaint, its competent authorities proceed to an impartial, speedy and effective investigation, wherever there is reasonable ground to believe that an act of torture or other cruel, inhuman or degrading treatment or punishment has been committed within its jurisdiction.

Article 11

  1. 1.  Each State Party shall, except in the cases referred to in Article 14, ensure that criminal proceedings are instituted in accordance with its national law against an alleged offender who is present in its territory, if its competent authorities establish that an act of torture as defined in Article 1 appears to have been committed and if that State Party has jurisdiction over the offence in accordance with Article 8.

  2. 2.  Each State Party shall ensure that an alleged offender is subject to criminal, disciplinary or other appropriate proceedings, when an allegation of other forms of cruel, inhuman or degrading treatment or punishment within its jurisdiction is considered to be well founded.

Article 12

Each State Party shall guarantee an enforceable right to compensation to the victim of an act of torture or other cruel, inhuman or degrading treatment or punishment committed by or at the instigation of its public officials. In the event of the death of the victim, his relatives or other successors shall be entitled to enforce this right to compensation.

Article 13

Each State Party shall ensure that any statement which is established to have been made as a result of torture or other cruel, inhuman or degrading treatment or punishment shall not be invoked as evidence against the person concerned or against any other person in any proceedings.

Article 14

Instead of instituting criminal proceedings in accordance with paragraph 1 of Article 11, a State Party may, if requested, extradite the alleged offender to another State Party, which has jurisdiction over the offence in accordance with Article 8.

(p. 1054) Article 15

  1. 1.  States Parties shall afford one another the greatest measure of assistance in connection with proceedings referred to in Article 11, including the supply of all evidence at their disposal necessary for the proceedings.

  2. 2.  The provisions of paragraph 1 of this Article shall not affect obligations concerning mutual judicial assistance embodied in any other treaty.

Article 16

States Parties undertake to submit to the Secretary-General of the United Nations, when so requested by the Human Rights Committee established in accordance with Article 28 of the International Covenant on Civil and Political Rights (hereafter referred to in the present Convention as the Human Rights Committee), reports or other information on measure taken to suppress and punish torture and other cruel, inhuman or degrading treatment or punishment. Such reports or information shall be considered by the Human Rights Committee in accordance with the procedures set out in the International Covenant on Civil and Political Rights and in the Rules of Procedure of the Human Rights Committee.

Article 17

If the Human Rights Committee receives information that torture is being systematically practice in a certain State Party, the Committee may designate one or more of its members to carry out an inquiry and to report to the Committee urgently. The inquiry may include a visit to the State concerned, provided that the Government of that State gives its consent.

Article 18

  1. 1.  A State Party may at any time declare under this Article that it recognizes the competence of the Human Rights Committee to receive and consider communications to the effect that a State Party claims that another States Party is not fulfilling its obligations under the present Convention. Communications under this Article may be received and considered only if submitted by a State Party which has made a declaration recognizing in regard to itself the competence of the Human Rights Committee. No communication shall be received by the Human Rights Committee if it concerns a State Party which has not made such a declaration.

  2. 2.  Communications received under this Article shall be dealt with in accordance with the procedure provided for in Article 41 of the International Covenant on Civil and Political Rights and in the Rules of Procedure of the Human Rights Committee.

Article 19

If a matter referred to the Human Rights Committee in accordance with Article 18 is not resolved to the satisfaction of the States Parties concerned, the Committee may, with the prior consent of the States Parties concerned, appoint an ad hoc Conciliation Commission. The procedures governing this Commission shall be the same as those provided for in Article 42 of the International Covenant on Civil and Political Rights and in the Rules of Procedure of the Human Rights Committee.

Article 20

  1. 1.  A State Party may at any time declare under this Article that it recognizes the competence of the Committee to receive and consider communications from individuals subject to its jurisdiction who claim to have been subjected to torture or other cruel, inhuman or degrading treatment or punishment in contravention of the obligations of that State Party under the present (p. 1055) Convention. No communication shall be received by the Committee if it concerns a State Party which has not made such a declaration.

  2. 2.  Communications received under this Article shall be dealt with in the accordance with the procedure provided for in the Optional Protocol to the International Covenant on Civil and Political Rights and in the Rules of Procedure of the Human Rights Committee.

Article 21

The Human Rights Committee shall include in its annual report to the General Assembly a summary of its activities under Article 16, 17, 18, 19 and 20 of the present Convention

(Final clauses to be elaborated)

Revised text of the substantive parts of the Draft International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

(Revised Swedish Draft)

(19 February 1979)4

Article 1

  1. 1.  For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

  2. 2.  [Torture is an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment.]

  3. 3.  This Article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application relating to the subject matter of this Convention.

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 of 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.]

(p. 1056) Article 3

No State Party shall expel, return (‘refouler’) or extradite a person where there are substantial grounds for believing that he would be in danger of being subjected to torture.

(Remark to be included in th