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Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Part I Substantive Articles, Art.11 Review of Detention and Interrogation Rules

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, 2022. All Rights Reserved.date: 17 January 2022

Subject(s):
Torture — Detention — Treaties, interpretation

(p. 318) Article 11  Review of Detention and Interrogation Rules

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.

1.  Introduction

Although Article 11 only seems to establish the formal obligation to keep interrogation and detention rules under systematic review, this provision, which is closely linked to Articles 2(1), 10, and 16, constitutes one of the most important safeguards for the prevention of torture and other forms of ill-treatment. This was also recognized by the Human Rights Committee (HRC) which stated that ‘keeping 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 imprisonment is an effective means of preventing cases of torture and other forms of ill-treatment’.1

The CAT Committee interprets this provision as a guarantee for procedural and substantive minimum standards of interrogation and detention law and practices, as laid down in key human rights instruments. Article 11 is meant to further reinforce the general obligation of States parties under Article 2(1) and Article 16 to take effective (p. 319) measures to prevent torture and other forms of ill-treatment by a specific requirement to regularly review the conditions of detention, methods of interrogation and the treatment of detainees in general. In other words, Article 11 plays a key role in the practical implementation of the Convention obligations and by setting up a duty for States to review their rules and practices systematically aims at closing the gap between the law and practice.

In order to keep these standards under an effective and systematic review with a view to preventing any cases of torture and other forms of ill-treatment, States parties need to establish a system of regular and independent inspections of all places of detention, similar to those required for the NPM under the Optional Protocol which entered into force in June 2006.

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

Original Swedish Draft (18 January 1978)2

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.

United States Draft (19 December 1978)3

Article 6

Each State Party shall keep under systematic, periodic review interrogation practices, and arrangements for the custody and treatment of persons deprived of their liberty within its jurisdiction with a view towards preventing cases of torture or other cruel, inhuman or degrading treatment or punishment.

Revised Swedish Draft (19 February 1979)4

Article 11

Each State Party shall keep under systematic review interrogation 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.

2.2  Analysis of Working Group Discussions

During the 1979 Working Group the issue was raised as to whether the phrase ‘territory under its jurisdiction’ included occupied territories. It was agreed that the phrase (p. 320) had the same meaning as had earlier been agreed upon in connection with Article 2(1) of the revised draft.5

An opinion was also expressed that there were certain discrepancies between Articles 10 and 11 which would require in the future some additional drafting work. It was agreed that Article 11 should be amended to harmonize it with Article 10 by referring to ‘interrogation rules, instructions, methods and practices’.6

3.  Issues of Interpretation

3.1  Meaning of ‘any case of torture’

The scope of application of Article 11 extends not only to torture but also to other forms of cruel, inhuman or degrading treatment or punishment.7 As established by Article 16(1) ‘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’.8

3.2  Meaning of ‘rules, instructions, methods and practices as well as arrangements’

10  The wording of Article 11, which refers to ‘rules, instructions, methods and practices’ as well as ‘arrangements’, clearly suggests that this provision shall apply not only to any legislative or administrative rules and instructions, but also to methods and practices. To this extent, it is worth remembering that Article 11, which initially referred only to ‘interrogation methods and practices’, was finally extended by the Working Group also to ‘interrogation rules and instruction’ with a view to harmonize it with Article 10.9 This means that States parties are not only required to review their written interrogation rules and instructions, but also their actual interrogation methods and practices. A similar conclusion can be reached in regard to the word ‘arrangements’ used with reference to custody and treatment of persons deprived of liberty.

3.3  Meaning of ‘interrogations’ and ‘custody and treatment of persons deprived of liberty’

11  Article 11 covers rules and practices concerning interrogations but also the custody and treatment of persons deprived of liberty, ie those subjected to any form ‘arrest, detention or imprisonment’. This concerns all contexts in which a person is deprived of his or her liberty, including detention facilities under the de facto control of a (p. 321) State, as well as in ‘contexts where the failure of the State to intervene encourages and enhances the danger of privately inflicted harm’.10 The Committee has applied Article 11 broadly, including for example in relation to police custody,11 premises of the intelligence and security departments,12 pre-trial detention,13 administrative detention,14 juvenile justice,15 detention in psychiatric institutions,16 and in social institutions.17 This shows that the notion of ‘deprivation of liberty’ in Article 11 CAT can today be considered as corresponding to the definition of deprivation of liberty under Article 4 OP.18

3.4  Meaning of ‘any territory under its jurisdiction’

12  As for the territorial scope of application, it was agreed during the drafting of the Convention that the phrase ‘in any territory under its jurisdiction’ had the same meaning as had earlier been agreed upon in connection with Article 2(1) of the revised draft. The reader is therefore referred to Article 2 CAT in this Commentary.19

3.5  Meaning of ‘systematic review’

13  Under Articles 2(1) and 16(1), States parties shall take effective legislative, administrative, judicial, or other measures to prevent torture and other forms of ill-treatment. If the legislative or administrative rules and instructions for the conduct of interrogation and the treatment of detainees constitute an important way to prevent ill-treatment, the systematic review of such rules and practices is an essential step for the implementation and continual monitoring of these obligations.20

14  Yet the interplay between Articles 1, 2, 16, and 11 makes it at times difficult to define the exact scope of application of Article 11. For example, in all decisions on individual complaints finding a violation of Article 11, the Committee has equally found a separate breach of Article 2 (alone21 or in conjunction with (p. 322) Article 122) or a violation of Article 11 together with Article 16.23 On the contrary, the Committee has never found a violation of Article 11 without having first established a breach of Article 2 or Article 16.24 Hence, although it has not stated this expressly, it seems that a violation of such provisions is a precondition for the finding of a violation of Article 11. A similar approach is taken in the reporting procedure.25

15  Although closely interconnected, the States obligations under Article 11 are additional to those established under Articles 2 and 16 and are meant to further reinforce the prevention of torture and other forms of ill-treatment. In other words, the use of the term ‘systematic review’ in Article 11 indicates that the obligations under Article 11 go beyond the adoption of a set of rules and practices. States parties, in fact, will not discharge their Convention obligations by simply adopting written rules and instructions, and establishing methods, practices, and arrangements to implement them, but will also have to make sure that such rules and practices are kept under systematic review.26 This means that States parties must ‘continually stay abreast of the actual situation’27 and need to reform their rules and practices if they are not in line with the relevant standards.

3.5.1  Obligation to Oversee Any Form of Deprivation of Liberty

16  Concretely, one of the core element of this provision is that the State has the obligation to oversee any form of deprivation of liberty of the individual to prevent torture and other forms of ill-treatment. A combined reading of Articles 2, 16, and 11 has led the Committee to the conclusion that States parties are under an obligation to establish a system of regular and independent monitoring and inspections of all places of detention. The existence of this obligation is confirmed by the Committee’s jurisprudence. In fact, when considering complaints invoking Article 11 the Committee has also taken into consideration whether a monitoring mechanism is in place.28 For example, in Kabura v Burundi and Niyonzima v Burundi the Committee has found a violation of Article 16, read in conjunction with Article 11 CAT, in view of the ‘manifest absence of any mechanism for monitoring’.29 Similarly, in Colmenarez and Sanchoz v Venezuela, the Committee found a (p. 323) breach of Article 11 due to the absence of any measure aiming at reinforcing independent procedures of inspection in prison.30 In doing so, the Committee has also, in certain instances, considered whether the absence of the monitoring mechanism had increased the risk for the person deprived of liberty of being subjected to acts of torture or other forms of ill-treatment;31 and the fact that the State party had not produced any information in this respect.32 Information provided by the State in this regard must be pertinent33 and not of general nature.34

18  In its concluding observations, the Committee has further clarified that such systematic review requires the establishment of an effective monitoring and inspection of all places of detention through ‘unrestricted’, ‘regular’, and ‘unannounced’35 visits by independent national and international monitors in order to prevent torture and other forms ill-treatment.36 Monitoring bodies should include non-governmental organizations.37 Moreover, States parties should also follow up on the outcome of such monitoring process.38

19  The obligation to establish a system of regular and independent monitoring is further strengthened by the entry into force of the OP, which requires States parties to establish an independent national preventive mechanism (NPM) to carry out unannounced visits to all places of detention.39 Since then, the Committee has often encouraged States parties to consider the possibility of ratifying the OP and urged them to establish a NPM which ‘independently, effectively and regularly monitors and inspects all places of detention without prior notice, reports publicly on its findings, and raises with the authorities situations of detention conditions or conduct amounting to torture or other forms of ill-treatment’.40

3.5.2  Standards of Review

20  The second core element of Article 11 is that, especially since the ‘systematic review’ needs to be done ‘with a view to preventing any cases of torture’, this provision establishes important procedural and substantive standards in relation to methods of interrogation, conditions of detention, and the treatment of persons deprived of liberty in general. (p. 324) These minimum standards, deriving from the absolute prohibition of torture and, by virtue of Article 16, of other forms of cruel, inhuman or degrading treatment or punishment, as well as from the general obligation to prevent torture enshrined in Article 2, shall be reflected in the States’ rules and practices concerning interrogations and detention.41

21  In this regard, the Committee has also repeatedly affirmed the importance of adhering to international standards, such as Articles 9 and 14 ICCPR but also Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment,42 the Standard Minimum Rules for the Treatment of Prisoners (Mandela Rules),43 as well as other UN Standards such as Minimum Rules for the Administration of Juvenile Justice (Beijing Rules),44 for the Prevention of Juvenile Delinquency (Riyadh Guidelines),45 for Non-custodial Measures (Tokyo Rules),46 for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (Bangkok Rules).47 Based on such international standards, over time the Committee has developed a rich body of recommendations. Without being exhaustive, this article will provide an overview of these standards of review.

3.5.2.1  Standards of Review relating to the Custody and Treatment of Persons Subjected To any form of Arrest, Detention, or Imprisonment

22  In its General Comment No 2 the Committee has acknowledged the relevance of a number of ‘basic guarantees applicable to all persons deprived of liberty’.48 Before analysing the Committee’s recommendations on each of these safeguards, it should be remembered that fundamental legal safeguards from early stages of custody are considered as the key and most effective factors in the prevention of torture.49 As torture and other (p. 325) forms of ill-treatment are likely to occur during the first hours of deprivation of liberty or interrogation, all key fundamental legal safeguards are to be granted from the very outset of a person’s deprivation of liberty. In fact, for the Committee ‘it is precisely while they cannot communicate with their families and lawyers that suspects are most vulnerable to torture’.50 Legal safeguards should then remain guaranteed throughout all stages of proceedings and all moments of deprivation of liberty.51

23  It is similarly worth noting that a precondition for the application of all safeguards that will be mentioned below is that all unofficial places of detention or interrogation are outlawed and no-one is detained in secret or unofficial facilities under the de facto control of the State party. According to the Committee, in fact, unofficial places of detention should be closed, as detaining individuals in such facilities is per se a breach of the Convention.52 As also put by the ECtHR ‘unacknowledged detention of an individual is a “complete negation” of the guarantees against the deprivation of liberty and security of the person’.53

25  The Committee has also called upon States parties to review their detention regime with a view to abolishing incommunicado detention,54 referred to as ‘a practice that is conducive to torture and enforced disappearances’.55 Although it has never given a detailed definition of incommunicado detention,56 the Committee seems to understand incommunicado detention as the practice of denying the persons deprived of liberty contacts with the outside world, including with his/her lawyer, doctors, family members, or other third persons. All persons held incommunicado should be released or charged and given a fair trial in accordance with due process.57

26  With regard to specific safeguards, the Committee considered that persons deprived of their liberty should be fully informed of the charges against them and about their rights in a language they understand, and receive language assistance such as translation and interpretation.58

27  Another key legal safeguard for persons deprived of liberty is the right to promptly contact a family member or any other person of their choice to notify them of the circumstances of their arrest and the place where they are being held, and their appearance before a judge.59 In this regard, the Committee has recommended that any official that fails to allow notification of relatives promptly should be disciplined or sanctioned.60

(p. 326) 28  The Committee has similarly stressed the right to remain silent61 and the importance of prompt access to a qualified and independent lawyer.62 Despite not expressly defining what prompt access means,63 the Committee has specified that access should be promptly given from the moment of deprivation of liberty and especially during the interrogation, investigation, and questioning process.64 It condemned the practices of certain States to postpone access to a lawyer for up to six days65 or a maximum of seventy-two hours in cases involving terrorism or organized crime,66 arguing that this puts suspects held in custody at greater risk of torture. The Committee also noted that the right to be assisted by a lawyer must be funded at the State’s expense, if necessary.67 In this respect an independent free legal aid system for detainees should be established and rigorously adhered to.68 Moreover, in line with the revised Mandela Rules now recognizing the right to legal representation ‘in any legal matter’,69 the Committee recommended to guarantee access to legal representation and legal aid to all persons deprived of liberty, including during first instance administrative level of the asylum process.70 It also highlighted that interpretation needs to be granted, when necessary.71 States must also ensure the full confidentiality of client–lawyer meetings as well as communications via telephone and correspondence.72 Appropriate premises should be made available where interviews between the accused and their counsel can take place within sight (but not within earshot) of a police officer or official of the establishment concerned.73

29  Equally important is the right to have immediate access to a qualified and independent medical doctor.74 In its concluding observations to Liechtenstein, the Committee indicated that all persons arriving in a penitentiary institution should be examined by an (p. 327) independent medical doctor within 24 hours of arrival. 75,76 Patient–doctor confidentiality during such medical examinations should be granted, and police officers should not be present during medical examinations of persons in police custody. This is in order to guarantee the confidentiality of medical information, save under exceptional and justifiable circumstances (ie, risk of physical aggression).77 Access to a doctor must not only be guaranteed immediately following arrest,78 but additionally at regular intervals thereafter and in particular before release.79

30  Further the Committee noted that any person deprived of liberty should be brought before a judge as soon as possible following the arrest and not later than forty-eight hours.80 Concerns were shown about certain national legislation allowing that this period be delayed in relation to persons accused of security-related offences or under a state of emergency.81 This long time frame is excessive and may leave room for acts of torture by the security forces.

31  In line with what is provided by other international instruments,82 all persons deprived of liberty have the right to have their detention recorded in a register.83 States parties have to take appropriate measures to establish a standardized, computerized, and centralized officials registers in which arrests are ‘immediately and scrupulously recorded’.84 Registers must be kept at all stages of deprivation of liberty.85 In particular, officials register should include the exact date, time, and place of detention of all persons deprived of their liberty. Most importantly ‘the time of de facto apprehension is accurately recorded to ensure that the first unrecorded hours of unacknowledged detention between the arrest and delivery to a police station cannot be used by law enforcement officials to obtain confessions by means of torture’.86 In other words, registration is to be done promptly after the moment of apprehension and not only upon formal arrest or charging.87 The prisoner’s file management should be kept regularly up to date.88 As a minimum, registers (p. 328) should contain ‘information on the identity of the detainee, date, time and place of the detention, the identity of the authority that detained the person, grounds for the detention, date and time of admission to the detention facility, state of health of the detainee upon admission and any changes thereto, time and place of interrogations, with names of all interrogators present, as well as the date and time of release or transfer to another detention facility’.89 Registers should document the use of restraints, including the reasons for use, duration of use, and particular method of restraint used,90 and contain information on interrogations.91 Registers should be accessible by lawyers and relatives of those detained.92 As detailed below, recording of interrogations should take the form of audio-videotaping of interrogations. The Committee has further recommended States to ‘carry out monitoring and inspections on a systematic basis in order to ensure fulfilment of the obligation to duly record the information regarding each arrest that is outlined in the Body of Principles’.93 All obligations concerning the prisoners file management needs to respect the principle of non-discrimination.94

32  The Committee has also set specific standards of review with regard to the custody and treatment of persons subjected to any form of arrest, detention or imprisonment, eg relating to the conditions of detention and, in particular, disciplinary sanctions and other restrictions. With this regard, both the HRC and the CAT Committee referred to the Standard Minimum Rules for the Treatment of Prisoners as the most important non-binding standard relevant for the interpretation of Article 10 CCPR and Article 11 CAT.95 The revision of the Mandela Rules, concluded in December 2015, further consolidated them as a key reference point.96 During such revision, the Committee submitted general observations on the Rules,97 thereby clarifying its position on some crucial aspects concerning Article 11 and complementing its previous jurisprudence and practice.

33  Lack of ventilation, poor sanitary conditions, repeated measures of prolonged isolation, holding suspects incommunicado, frequent transfers from one prison to another, the mixing of women and men, juveniles and adults, convicted prisoners and pre-trial detainees could lead to inhuman or degrading treatment in violation of Article 10 CCPR and/or Articles 16 and 11 CAT.98 If the issue of detention conditions is examined in details under Article 16 in this Commentary, for the purpose of this Article it is particularly interesting to illustrate it in its relation with Article 11. As mentioned above, the Committee has in certain instances found a violation of Article 16 in conjunction with Article 11.99 In these decisions, a reference was made to overcrowding and size of cells; access to light, food, or water; access to a medical doctor; and more generally to ‘insanitary conditions’. More generally, in all cases the Committee found the State to be responsible under Article 11 due to the absence of a monitoring mechanism.

(p. 329) 34  In the reporting procedure, in order to reduce the prison population and avoid overcrowding, the Committee stressed the need to increase the use of non-custodial measures in conformity with the Tokyo Rules,100 and urged State