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Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment Or Punishment, Part III Mandate of the Subcommittee on Prevention, Art.15 Prohibition of Sanctions against any Source of Information of the Subcommittee

Kerstin Buchinger

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: 20 January 2022

Subject(s):
Torture — Treaties, interpretation

(p. 861) Article 15  Prohibition of Sanctions against any Source of Information of the Subcommittee

No authority or official shall order, apply, permit or tolerate any sanction against any person or organization for having communicated to the Subcommittee on Prevention or to its delegates any information, whether true or false, and no such person or organization shall be otherwise prejudiced in any way.

1.  Introduction

Torture usually takes place behind closed doors in a situation of powerlessness of the victim, without witnesses. Apart from the results of a forensic investigation, which are usually not available to detainees, there is hardly any evidence which the victim can use to prove that he or she had been subjected to torture. After having made a confession or provided information under torture, victims are often threatened to not report on their experience and even forced by their tormenters to sign a written statement to the effect that they had not been subjected to any form of torture or ill-treatment.

As torture constitutes one of the most serious human rights violations, which is absolutely prohibited even in the most exceptional circumstances, the authorities responsible as well as States in general have a strong interest in denying practices of torture. According to our experience, even democratic governments with a highly developed human rights culture prefer to believe their law enforcement agencies rather than to investigate seriously allegations of torture. If accused of torture before an international body, they often react as strongly against such allegations as governments responsible for a systematic practise of torture.

This combination of factors, ie the powerlessness of the victim and the difficulties in proving torture on the one hand, and the strong interest of States to deny torture on the other, leads to another form of victimization. If a person alleges torture before any domestic or international body, the authorities directly accused, and often even the highest authorities of the country, not only deny these allegations but also accuse the claimant, who often is detained because of being accused of having committed a crime, as not trustworthy, as defamatory, as only wishing to avoid a criminal conviction by alleging that the (p. 862) confession he or she made before the police was made under torture. In addition, such persons are often threatened, harassed, or even again subjected to torture or killed.

This short analysis of a vicious circle, which can be confirmed by most organizations and monitoring bodies active in the field of torture prevention and/or assistance of torture victims, leads to three major conclusions:

  • •  Efforts of combating torture must break through this vicious circle by unveiling the secrecy around torture and detention. The most effective means is by opening the doors of detention centres to independent scrutiny, monitoring, and preventive visits.

  • •  Monitoring bodies which conduct prison visits must ensure that interviews with detainees are made on a strictly voluntary basis and are conducted in an atmosphere of mutual trust and respect, and that the information received from detainees is kept strictly confidential, unless the person concerned, on the basis of the principle of informed consent, voluntarily agrees to any form of publication.

  • •  Detainees, witnesses, and other persons who provide any form of information to a visiting body must be protected, as far as possible, against any form of reprisals or re-victimization because of having agreed to provide evidence.

The need to protect detainees and other sources of information against reprisals has been recognized, eg in the terms of reference for fact-finding missions by UN special procedures which provide for guarantees by the Government that invited them to visit its country to the effect that ‘no persons, official or private individuals who have been in contact with the special rapporteur/representative in relation to the mandate will for this reason suffer threats, harassment or punishment or be subjected to judicial proceedings’.1 In our experience, the protection of interview partners in custody or human rights defenders against reprisals is the most difficult aspect of conducting country missions, visits to places of detention, and private interviews with detainees. Even if all precautionary measures in relation to the privacy of the interview and confidentiality of the information received have been fully complied with, the very fact that a particular individual was willing to speak to the Special Rapporteur can usually not be disguised from the staff of the place of detention or other State authorities concerned. After the Special Rapporteur leaves a particular detention facility or the country in general, he has only very limited means of monitoring whether the assurances received by the Government have in fact been complied with or not.

The ECPT does not contain a specific provision aimed at protecting detainees and other sources of information provided to the CPT during country missions against reprisals. But such an obligation of States parties can, of course, be derived from their obligation under Article 3 ECPT to cooperate with the CPT, and the practice of the CPT, the ICRC, and similar bodies carrying out visits to places of detention reflects their concern for the protection of their sources of information against reprisals and victimization.2

Article 15 OP, therefore, constitutes the first explicit provision in a human rights treaty which aims at protecting detainees and other persons or organizations against any (p. 863) factual sanction or judicial proceedings for having communicated to the visiting body any information, whether true or false.3 Similar provisions of victim and/or witness protection can be found, eg in Article 34 ECHR4 and in Article 68 of the Rome Statute of the International Criminal Court.5

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

Revised Costa Rica Draft (15 January 1991)6

Article 12

  1. 4.  No authority or official shall order, apply, permit or tolerate any sanction against any person or organization for having communicated to the Subcommittee or to the delegates any information whether true or false, and no such person or organization shall be otherwise prejudiced in any way.

Text of the Articles which Constitute the Outcome of the Beginning of the First Reading (12 December 1994)7

Article 12

  1. 4.  No authority or official, on the basis of [any] [well-founded and reliable] information [regarding torture and other cruel, inhuman or degrading treatment or punishment,] provided to the Sub-Committee or its delegations, shall order, apply, permit or tolerate any sanctions against any person or [national legal] organisation who provided that information, [and no such person or organisation shall be otherwise prejudiced in any way].

2.2  Analysis of Working Group Discussions

10  During the first session of the Working Group, held from 19 to 30 October 1992, Article 12 of the revised Costa Rica Draft of 1991 was discussed under the fourth basket of issues ‘Operation of the system’.8 Regarding Article 12(4), concern was expressed that this provision might, inter alia, have the effect of preventing recourse to domestic remedies for false or defamatory statements or breaching duties of confidence. One delegation (p. 864) considered that the principle of confidentiality should alleviate any legitimate concerns of this nature. It was argued, furthermore, that this degree of immunity from civil liability was excessive and unnecessary. Consequently, the issues addressed in Article 12(4) of the then draft text were not included in any of the following proposals.

11  At the Working Group’s seventh session from 28 September to 9 October 1998, it was generally felt that Article 12 was of crucial importance to the whole document since it contained references to the basic commitments that States would accept by ratifying the OP. The purpose of this Article was therefore to define what host governments should offer the SPT in terms of cooperation, information, and assistance. The general approach of all delegations was that the contents of the present Article 12 could be reduced to several core elements of the visits, including access to the territory, provisions of information, access to places of detention, and access to individual persons, as well as the opportunity for private interviews with such individuals and the opportunity to communicate with persons who were in a position to supply relevant information.9 Still, the delegations had failed to arrive at a final text of Article 12. Thus, its text was included in Annex II to the seventh report of the Working Group to serve as a basis for future work.10 However, there was an understanding reached in the Working Group, which was reflected in one of three notes, stating: ‘The protection of persons who have communicated with the Subcommittee will be addressed in a separate Article.’11

12  At the tenth session of the Working Group, held from 14 to 25 January 2002,12 the issue of so-called victimization was taken up again by the Chairperson-Rapporteur in her draft in a new Article 15.13

3.  Issues of Interpretation

13  Article 15 OP is identical to Article 12(4) of the revised Costa Rica Draft of 1991.14 This does not mean, however, that this provision was not controversial. On the contrary, delegates in the Working Group had expressed strong concerns that this provision might have the effect of preventing recourse to domestic remedies for false or defamatory statements and would in fact provide for immunity from civil liability, which was considered excessive and unnecessary.15 After the respective provision was deleted from the various drafts, the Chairperson-Rapporteur in her draft of January 2002 reintroduced it again in the version as originally proposed by Costa Rica.

14  The word ‘sanction’ is more formal than mere factual reprisals and includes civil liability and criminal sanctions. The term ‘reprisals’ is often used to describe punishment practices inflicted by guards or detaining authorities against detainees who have reported to independent monitors. Being defined as an act of revenge or retaliation, the term ‘reprisal’ is neither exact nor precise, since the effects suffered by individuals subjected to torture and other forms of ill-treatment do not result from committing an ‘offence’ (p. 865) justifying revenge or punishment. Therefore, the more generic term ‘sanction’, also used in Articles 15 and 21 OP, describing any punishment resulting from mere contact with an independent monitor, seems to be more adequate.16 In addition, the phrase ‘whether true or false’ indicates that even completely false and slanderous accusations against particular individuals of having committed the crime of torture are immune from civil or criminal liability. This is indeed a fairly far-reaching protection of all persons and organizations for having provided relevant information to the SPT, and States parties are under a respective obligation to provide for specific immunities in their civil and criminal codes. But in view of the object and purpose of the Protocol and the danger in which detainees and other persons providing respective information concerning torture to international monitoring bodies often find themselves,17 such a far-reaching protection seems justified. On the other hand, in assessing the facts and in making reports public in accordance with Article 16(2) and (4) OP, both the CAT Committee and the SPT also have a specific responsibility vis-à-vis police officers, prison guards, and other individuals who might have been falsely accused of torture. This is underlined by the SPT’s duty of confidentiality under Article 2(3) OP.18

15  On 23 March 2012, France was the first State party issuing a declaration relating to Article 15. It declared that

[p]ursuant to articles 15 and 21 of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, no French authority or official shall order, apply, permit or tolerate any sanction against any person or organization for having communicated to the SPT or to its delegates or to the national preventive mechanism any information, whether true or false, and no such person or organization shall be otherwise prejudiced in any way, provided that, in the case of false information, the person or organization in question was unaware of the false nature of the information at the time of its communication and, moreover, without prejudice to the legal remedies that persons who are implicated may invoke for harm suffered as a result of the communication of false information about them.

16  Already in its second Annual Report, the SPT expressed its concerns about the possibility of reprisals after its visits.19 Persons deprived of their liberty who had been interviewed by members of the SPT may have been threatened if they did not reveal the content of their interviews or may have been punished for having spoken with the delegation. Also, the SPT had been informed about the fact that some interviewees might have been warned in advance not to say anything to the SPT experts. Thus, the SPT called on the authorities of each State visited to verify whether reprisals had in fact occurred and ‘to take urgent action to protect all persons concerned’.20 Later on, it stressed the importance of NPMs in this context,21 as ‘[e]arly follow-up visits by NPMs and/or civil society … may offer a potential safeguard’.22

(p. 866) 17  During 2012, the SPT had established (among others) an ad hoc working group on reprisals23 in order to develop a proactive policy asserting the SPT’s strong commitment to preventing reprisals.24 The working group concluded its work in 2014, having drafted an interim working tool for the SPT, which was adopted by the SPT at its twenty-fifth session (in February 2015).25 A revised version of this policy was adopted at the SPT’s twenty-eighth session (in February 2016).26

18  The policy as such contains general principles (I) as well as a general operational practice (II), subdivided into specific (III) and protective measures (IV) or rather awareness-raising elements in order to avoid reprisals.

19  The SPT decided to appoint one of its members to be a rapporteur on reprisals in order to monitor the implementation of the SPT’s policy in accordance with the San José Guidelines,27 coordinate its activities relating to reprisals, and keep in contact with all the relevant bodies in order to avoid reprisals at any level. Where appropriate, the SPT decided to discuss issues concerning reprisals with States parties either collectively or in the course of bilateral meetings. Moreover, it announced to agree upon procedures for NPMs concerning responses to reprisals, taking into account the specific country needs depending on the respective situations.28

20  In specific, the SPT will raise any concerns regarding reprisals confidentially with State party authorities. It will ‘contact the State party to request information, express its concerns and request an investigation and the immediate cessation of the intimidation or reprisals’. When appropriate, the SPT may ‘issue statements on specific incidents or generalized practices of intimidation or reprisals and circulate them to international and national media outlets, or make comments to the media and on social media’. Moreover, it may request the assistance of the OHCHR and its secretariat may inform individuals or groups (making allegations of intimidation or reprisals) ‘that they may submit an urgent communication to the special procedure mandate holders of the Human Rights Council’.29

21  In its communications, reports, and follow-up requests, the SPT will demand States parties ‘to take the measures necessary to protect individuals and groups from intimidations or reprisals’.30

Kerstin Buchinger

Footnotes:

1  Note by the OHCHR transmitting report of the Meeting of Special Rapporteurs/Representatives/Experts and Chairpersons of Working Groups of the Special Procedures of the Commission on Human Rights and of the Advisory Services Programme of 20–23 May 1997 (1997) E/CN.4/1998/45 of 20 November 1997, Appendix V.

2  See APT and IIDH,Optional Protocol to the United Nations Convention against Torture: Implementation Manual (2nd rev edn, APT and IIDH 2010) 80ff.

3  Similar provisions have now been included in other Optional Protocols (cf Art 11 OP-CEDAW, Art 13 OP-ICESCR, and Art 4 OP3-CRC). For more detailed information on provisions on reprisals in human rights treaties and their optional protocols cf. Reprisals in the Context of United Nations Human Rights Mechanisms (2015) UN Doc HRI/MC/2015/3 of 13 April 2015, Annex I.

4  The last sentence of Art 34 ECHR, which provides for the mandatory right of victims to submit individual complaints to the European Court of Human Rights, reads as follows: ‘The High Contracting Parties undertake not to hinder in any way the effective exercise of this right’. In practice, the Court has found violations of this right, eg in Paladi v Moldova [GC] App No 39806/05 (ECtHR, 10 July 2007); Nurmagomedov v Russia App No 30138/02 (ECtHR, 7 June 2007); Mamatkulov and Askarov v Turkey App Nos 46827/99 and 46951/99 (ECtHR, 4 February 2005).

5  Art 68 ICC Statute deals explicitly with the protection of the victims and witnesses and their participation in the proceedings before the ICC.

6  Letter dated 15 January 1991 from the Permanent Representative of Costa Rica to the United Nations at Geneva addressed to the Under-Secretary-General for Human Rights (1991) UN Doc E/CN.4/1991/66.

7  Report of the Working Group on the Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1995) UN Doc E/CN.4/1995/38, Annex.

8  Report of the Working Group on a Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1992) UN Doc E/CN.4/1993/28, para 26.

9  Report of the working group on the draft optional protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on its Seventh Session (1998) UN Doc E/CN.4/1999/59 para 25. See above Art 12 OP.

10  ibid, para 30.

11  ibid, para 31.

12  Report of the Working Group on a Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on its Tenth Session (2002) UN Doc E/CN.4/2002/78.

13  See E/CN.4/2002/CRP.1.

14  See above para 8.

15  See above para 10.

16  See APT, ‘Briefing No 4: Mitigating the Risks of Sanctions related to Detention Monitoring’ (January 2012) <https://www.apt.ch/content/files_res/Briefing4_en.pdf> accessed 21 November 2017.

17  See above para 1.

18  See above Art 2 OP, 3.

20  ibid, para 32.

21  See SPT, ‘Third Annual Report of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (2010) UN Doc CAT/C/44/2, para 36.

22  SPT, ‘Forth Annual Report of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (2011) UN Doc CAT/C/46/2, para 56.

25  SPT, ‘Policy of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on Reprisals in Relation to Its Visiting Mandate’ (2015) UN Doc CAT/OP/6.

27  Guidelines against Intimidation or Reprisals ('San Jose Guidelines') (2015) UN Doc HRI/MC/2015/6.

28  CAT/OP/6/Rev.1 (n 26) I para 8; see Art 21 OP below.

29  ibid, III.

30  ibid, para 26.