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

Roland Schmidt

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

Edited By: Manfred Nowak, Moritz Birk, Giuliana Monina

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 21 May 2022

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

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

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

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

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

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

(p. 250) 1.  Introduction1

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

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

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

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

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

Article 6

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

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

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

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

United States Draft (19 December 1978)6

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

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

  3. b)  all other States concerned.

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

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

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

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

Revised Swedish Draft (19 February 1979)7

Article 6

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

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

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

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

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

2.2  Analysis of Working Group Discussions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

3.  Issues of Interpretation

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

3.1.1  Examination of Information Available

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

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

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

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

3.1.1.1  HBA et al v Canada

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

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

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

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

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

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

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

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

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

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

3.1.2  Custody or Other Legal Measures to Ensure Presence

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

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

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

3.1.2.1  Almatov Case (Germany)

31  The visit of then Uzbek Minister of Interior Zokir Almatov to Germany and the failure of the German authorities to secure Almatov’s presence is another instructive example for the challenges to ensure the implementation of Article 6.29 Almatov visited Germany in late 2005 on the basis of a humanitarian visa in order to receive medical treatment. In December, eight Uzbeks living in Germany filed complaints with the German Federal Prosecutor in which they accused Almatov of being criminally responsible for torture and torture as a crime against humanity perpetrated in Uzbekistan’s places of detention as well as for crimes against humanity in relation to the Andijan massacre.30 The complaints were supported by Amnesty International and Human Rights Watch. Furthermore, the UN Special Rapporteur on Torture called upon the German authorities to initiate criminal proceedings against Almatov.31 However, soon after reports about the complaints were published in the German news, Almatov left Germany without ever being questioned by the German authorities.

32  Under the Convention Germany has an obligation to exercise its jurisdiction under Article 5(2) and to ensure the presence of alleged torturers on its territory as required in (p. 259) Article 6(1). Confronted with the question why it failed to do so in the case of Almatov, Germany submitted in its fifth periodic report to the Committee against Torture that

[t]he German criminal prosecution authorities had become aware that Mr. Almatov was staying in Germany when a first complaint of an offence was brought against him on 5 December 2005. He had, however, already left Germany at that point. For that reason the Public Prosecutor General decided not to institute investigation proceedings against Mr. Almatov.32

33  Although Germany’s failure to secure the presence of Mr. Almatov was never subject of a complaint to the Committee against Torture and the Committee did also not take up the issue when considering Germany’s fifth periodic report, and hence no authoritative evaluation of the matter is available, a few critical remarks are in order. Article 6(1) obliges States parties to secure the presence of alleged torturers on their territory ‘upon being satisfied, after an examination of information available to it …’. The wording ‘information available to it’ does not imply that either the presence of an alleged torturer on the State party’s territory or the related incriminating information must be raised by complainants and submitted as a formal complaint for the State party’s authorities being obliged to act. This would be an impermissible restrictive reading of Article 6(1).33 Whenever the State party’s authorities know about the presence of an alleged torturer they are obliged to act. In the case of Almatov, these requirements were—in all likelihood—fulfilled. The German authorities knew about Almatov’s presence already prior to the complaint of 5 December since they issued him with a humanitarian visa on 14 November to facilitate his medical treatment. Furthermore, the German authorities must have also had sufficient information on Almatov’s alleged role in the Andijan massacre as well as in the systematic abuse of persons held in Uzbekistan’s places of detention since the visa was issued as an exception to an EU-wide travel ban imposed on persons considered to be responsible for the Andijan massacre.34 Almatov was on top of this list and the German authorities had consulted with the EU Commission and Presidency prior to issuing the visa.35 While it cannot be expected from a State party to check for every visa request whether the applicant is an alleged torturer, it seems reasonable to argue that in cases as high profile and well documented as the one of Almatov, the State party’s authorities would be obliged to act on their own initiative.

3.1.2.2  Ely Ould Dah Case (France)

34  There can be cases in which the application of non-custodial measures to ensure the presence of the alleged torturer eventually turn out to be insufficient. In the French case of Ely Ould Dah,36 the army commander was alleged to have committed acts of torture in 1990 and 1991 in a military camp in Mauritania. Triggered by a complaint of Mauritanian exiles living in France, Mr. Ould Dah was arrested by French authorities (p. 260) in 1999 while undertaking training at a French army school, and taken into custody. Following an appeal with the French judicial authorities, Mr. Ould Dah was released and placed under judicial control, ie, under house arrest with his passport confiscated. However, these measures eventually proved insufficient to ensure his presence. In April 2000, Mr. Ould Dah absconded and returned to Mauritania, where he continued to serve in the national army. Irrespective of his flight, the French authorities continued to prosecute Mr. Ould Dah, with the participation of his legal representatives in the proceedings. Eventually, in July 2005 the Nîmes Assize Court (Cour d’assises) sentenced Mr. Ould Dah in absentia to the maximum penalty of ten years of imprisonment for having directly committed, ordered, and organized acts of torture. While welcoming the sentencing of Mr. Ould Dah, the Committee against Torture expressed regret of France’s failure to have taken the necessary steps to keep Mr. Ould Dah in its territory, and to indeed ensure his presence for his trial, in conformity with its obligation under Article 6.37

3.1.2.3  Al-Duri Case (Austria)

35  A prominent and politically sensitive case highlighting a State party’s failure to perform its obligations under Article 6 relates to the presence of Izzat Ibrahim Khalil Al-Duri38 in Austria in 1999. Al-Duri, then Deputy Chair of the Revolutionary Council of Iraq and Deputy of Iraqi dictator Saddam Hussein, had travelled to Vienna for medical treatment. Based on evidence collected in an Austrian and a Swedish court, a Vienna city councillor submitted a complaint with the Public Prosecutor alleging that Al-Duri was criminally responsible for the torture of two Iraqis as well as other citizens. Furthermore, the Public Prosecutor was requested to ‘arrange the arrest of the accused Izzat Ibrahim Khalil Al-Duri and to commence with the investigation of the facts of the case’.39 Reportedly, the Public Prosecutor subsequently instituted investigations.

36  While the politically charged public discussion partly focused on the question, why a visa had been granted to Al-Duri in the first place, the Austrian Minister of Justice erroneously argued that Austria would not be in the position to prosecute under universal jurisdiction in the absence of an extradition request by another State. Eventually, Al-Duri, who had not been arrested during the prosecutor’s investigations or subject to any other measures restricting his freedom of movement, was able to leave the country. Although the conduct of the Austrian authorities was never legally challenged, for example before (p. 261) the Committee against Torture, there is little doubt that the Austrian authorities failed to perform their obligation under Article 6(1) to take Al-Duri into custody or take other legal measures to ensure his presence, as well as in the absence of an extradition request, to submit the case to the competent authorities for the purpose of prosecution in accordance with Article 7.

3.1.3  ‘Only for such time as necessary’

37  According to the last sentence of Article 6(1), the custody or other legal measures ‘may be continued only for such time as is necessary to enable any criminal or extradition proceedings to be instituted’. This phrase, while intended to be a ‘general indication’,40 which does not appear in the US draft and was inserted by the revised Swedish draft, is somewhat misleading. The word ‘custody’ and its restriction until the ‘institution’ of criminal or extradition proceedings might lead to the narrow literal interpretation of police custody, which should never last longer than a few days. The purpose of this provision goes, however, beyond this initial stage of the proceedings. Even after criminal or extradition proceedings have been instituted, the suspected torturer might be kept in detention, if the circumstances of the particular case require such a measure. Detention and other measures to ensure the presence of a suspected torturer during the criminal and/or extradition proceedings might be maintained until his or her conviction or deportation.41

3.2  Article 6(2): Obligation to Make a Preliminary Inquiry Into the Facts

38  Once the State party decided under Article 6(1) to ensure the presence of an alleged perpetrator, paragraph 2 obliges it to ‘immediately make a preliminary inquiry into the facts’. Such criminal investigation is based on the information made available by victims and other sources as indicated in Article 6(1), but also requires active measures of evidence gathering, such as interrogation of the alleged torturer, taking of witness testimonies, inquiries on the spot, or searching for documentary evidence. If the alleged act of torture was committed on the territory of the investigating State, its authorities can apply all usual methods of criminal investigation. If the investigating State intends to exercise its jurisdiction on the basis of Article 5(1)(b), (c), or (2), it needs the cooperation of the territorial State and possibly also other States.42 For this reason, Article 9 explicitly establishes an obligation of States parties to provide mutual judicial assistance.

39  The purpose of the preliminary inquiry in Article 6(2) is to enable the investigating State to decide whether to exercise jurisdiction by means of criminal prosecution or to extradite the alleged torturer to another State. The discussions of the words ‘preliminary inquiry’ during the 1980 Working Group, which led to the insertion of the phrase ‘after (p. 262) an examination of information available to it’ in Article 6(1) show that the inquiry in Article 6(2) goes already beyond the available information on the basis of which the State party has to decide whether it is warranted to ensure the presence of the alleged torturer. The preliminary inquiry under Article 6(2) has to include information actively gathered by the competent authorities. It does not end, as the last sentence of Article 6(1) might suggest, with the ‘institution’ of criminal or extradition proceedings, but with the decision whether to prosecute or to extradite the suspected torturer.

40  In those cases in which the alleged torturer is arrested on the basis of an international arrest warrant and the custodial State is requested to extradite, it is the requesting State which primarily makes an inquiry into the facts and provides the custodial State with the information necessary to justify extradition.43 However, this does not absolve the custodial State from conducting his own investigation in order to verify whether the arrest warrant and extradition request are indeed sufficiently substantiated. Furthermore, as part of this investigation the custodial State has also to assure itself that the requesting State is indeed willing and able to prosecute the alleged torturer and that extradition is not facilitating impunity. Similarly, the custodial State is also required to seek information on whether an extradition to the requesting State would violate the non-refoulement principle. Should it turn out that this is the case the custodial State itself has to prosecute or, if present, extradite the alleged torturer to another State requesting extradition.

3.2.1  The Habré Case before the ICJ-Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal)

41  The duty to immediately make a preliminary inquiry under Article 6(2) was also adjudicated in the Habré case before the International Court of Justice (ICJ).44 In its judgement the Court elaborated on the nature as well as the timing of the investigation required under Article 6(2).

42  The Court submitted that the intention of the inquiry stipulated in Article 6(2) is to ‘corroborate or not the suspicions regarding the person in question’.45 While the ‘choice of means for conducting the inquiry remains in the hands of the State’,46 the inquiry has to be conducted by the competent authorities which are tasked to draw up case files and collect facts and evidence, including witness statements. The obligation under Article 6(2) would have therefore required Senegal inter alia to actively seek evidence, including contacting Chadian authorities. However, no such steps were taken. The questioning of Mr. Habré by the investigative judge in 2000 in order to establish Habré’s identity and to inform him of the accusations brought forward against him ‘cannot be regarded as performance of the obligation laid down in Article 6, paragraph 2, as it did not involve any inquiry into the charges against Mr. Habré.’47

(p. 263) 43  Instructively, the Court also elaborated on the required timing of an investigation under Article 6(2). In general, it held that ‘steps must be taken as soon as the suspect is identified in the territory of the State’.48 This requirement is an important difference to the State party’s obligations under Article 12 and 13 which have to be performed irrespective of whether the suspect is present or known.49 In the Habré case, the obligation to initiate a preliminary investigation arose ‘immediately’ as soon as the Senegal authorities had reason to suspect Mr. Habré, who was in their territory, of being responsible for acts of torture. This point was reached ‘at least since the year 2000, when a complaint was filed in Senegal against Mr. Habré’.50

44  The Court’s finding is insofar noteworthy as it concluded Senegal to be in violation of Article 6(2) irrespective of the performance of its obligation under Article 5(2). While the ICJ had not considered whether Senegal violated Article 5(2),51 it is implicit in the Court’s reasoning on Article 7 that Senegal had failed to establish the required jurisdiction under Article 5(2) until the legal amendments in 2007 and 2008.52 Consequently, the Court’s ruling implies that the absence of the required legal framework under Article 5(2), or any other required jurisdiction under Article 5, does not absolve the State party to perform its obligations under Article 6(2).

45  Senegal’s breach of Article 6(2) continued also after 2008 when it eventually had amended its legal framework following the Committee against Torture’s decision in the Guengueng et al case.53 Although the required jurisdiction under Article 5 would have been available from then on, Senegal continued to fail initiating a preliminary inquiry, even after the submission of a further complaint to its authorities in 2008.54

3.3  Article 6(3): Obligation to Assist in Communicating with Representative of the State

46  Article 6(3) requires the State party to assist the alleged torturer to communicate with the nearest appropriate representative of the State of which he or she is a national, or, if a stateless person,55 with the representative of the State where he or she usually resides. Importantly, it remains at the discretion of the detainee, whether he or she indeed wants to contact eg its local embassy or consulate. The State party is only obliged to assist, for example, by providing a phone and the relevant phone number, and cannot (p. 264) invoke the alleged perpetrator’s right under Article 6(3) against his or her will. This also means the custodial State cannot grant the authorities of the detainee’s country of nationality or residence the right to communicate with the detainee, if he does not want so.56 The US proposal to include into the Convention the explicit right to be visited by a representative of the State of nationality or residence did not find its way into Article 6(3). Nevertheless, this right derives from Article 36(1)(c) of the Vienna Convention on Consular Relations.57

3.4  Article 6(4): Obligation to Notify Other States of the Measures Taken and Intended to Be Taken

3.4.1  Application to All Forms of Jurisdiction under Article 5

47  Article 6(4) is addressed to all States parties which exercised their jurisdiction under Article 5 and hence not limited to universal jurisdiction cases. Although the article was kept in square brackets for several years during the drafting process because of its connection with the question of universal jurisdiction,58 and irrespective of its reference to Article 5(1) in the first sentence, its systematic interpretation shows that Article 6(4) applies to all grounds of jurisdiction stipulated in Article 5. Hence, the safeguards of Article 6(4) are pertaining to cases in which the custodial State seeks to exercise universal jurisdiction as well as to cases in which a State seeks to exercise jurisdiction on the basis of the territorial, active or passive nationality principle.59

3.4.2  ‘Has taken a person into custody’

48  The wording of the first sentence of Article 6(4) refers only to those cases in which the alleged torturer was taken into custody under Article 6(1). This limitation, with its apparent exclusion of suspected torturers whose freedom of movement has been restricted with non-custodial measures, seems surprising. On the one hand, a potential explanation for this limitation could be that the first sentence was intended to provide an additional safeguard to persons held in custody by informing their State of nationality. Although Article 6(3) already facilitates suspects to communicate with their representatives, Article 6(4) contributes further safeguards by requiring the custodial State to inform the alleged torturer’s country of origin (Article 5(1)(b)). However, it is not clear why a notification of States which may have no direct link with the alleged perpetrator (such as States with territorial or passive nationality jurisdiction) should be informed in order to safeguard the alleged torturer’s rights. On the other hand, if the purpose of Article 6(4) is to inform other States with potential jurisdiction over the case so that they can make a decision on whether to request extradition or not, the exclusion of cases in which the presence of the (p. 265) alleged perpetrator is ensured by non-custodial measures appears to constitute a gap. In practical terms, this gap however is likely to be marginal since securing the presence of the alleged torturer by non-custodial measures represents the exception rather than the norm. Considering the severity of the alleged crime as well as the danger of the alleged torturer absconding, custody will be in most cases the required choice.

3.4.3  ‘Immediately notify’

49  As stipulated in the first sentence of Article 6(4), the custodial State is obliged to notify States with jurisdiction under Article 5(1) ‘immediately’. This is generally interpreted to mean within a few hours.60

3.4.4  ‘States referred to in Article 5(1)’

50  If the custodial State is identical with the territorial State, it only must notify other States if the alleged torturer and/or victims are nationals of another State. If the custodial State exercises jurisdiction based on the active nationality principle under Article 5(1)(b), it must notify the territorial State and possibly also States whose nationals were tortured by the person concerned. If the custodial State exercises jurisdiction based on the passive nationality principle under Article 5(1)(c), it must notify the territorial State and, if different, the State whose national the alleged torturer is. If the custodial State exercises universal jurisdiction, it must notify all States having jurisdiction pursuant to Article 5(1).

51  The obligation to notify States with jurisdiction under Article 5(1) is of ‘a general character’61 meaning it must be performed even if the custodial State has from the outset the intention to prosecute and not to extradite the alleged torturer.62 Indirectly, this requirement also arises by the duty of the custodial State to contact as part of its investigation other States which may possess relevant information pertaining to the case. As required by Article 9(1), all States parties shall afford another the greatest measure of assistance in relation to criminal proceedings, including the supply of all available evidence.63

3.4.5  Duty to Promptly Report Findings of Preliminary Inquiry

52  The second sentence of Article 6(3) refers to the preliminary inquiry under Article 6(2). The custodial State which is normally tasked to conduct such an inquiry, must promptly report the findings of the inquiry to States with jurisdiction under Article 5(1). In such a report, the State shall also indicate whether it intends to exercise jurisdiction.

53  The word ‘promptly’ illustrates that such preliminary inquiries shall be conducted speedily, if possible within a few weeks. The length of criminal investigations depends on the complexity and the particular circumstances of each individual case. The purpose of this reporting obligation is again primarily to enable all States with a possible interest in prosecuting the alleged torturer to decide whether or not to request extradition.64 Even if the custodial State indicates its intention to exercise jurisdiction, other States, above all the territorial State, might request the extradition of the person concerned. For the (p. 266) custodial State, such extradition request may be of assistance in its decision on prosecution or extradition as required by Article 7. Since Article 5 does not contain any hierarchy as to the different grounds of jurisdiction, it is finally up to the custodial State to decide whether to exercise jurisdiction and to prosecute the suspected torturer or to extradite him or her.

Roland Schmidt

Footnotes:

1  For in depth analyses of national legislations and jurisprudence, particularly in relation to universal jurisdiction, see Cedric Ryngaert, ‘Universal Criminal Jurisdiction over Torture: A State of Affairs’ (2005) KU Leuven Faculty of Law, Institute for International Law, Working Paper No 66 (revised); Karen Janina Berg, Universal Criminal Jurisdiction as Mechanism and Part of the Global Struggle to Combat Impunity with Particular Regards to the Crime of Torture (Studienreihe des Ludwig Boltzmann Instituts für Menschenrechte, NWV, Neuer Wissenschaftlicher Verlag 2012); Luc Reydams, Universal Jurisdiction: International and Municipal Legal Perspectives (Oxford University Press 2003); Wolfgang Kaleck, ‘From Pinochet to Rumsfeld: Universal Jurisdiction in Europe 1998–2008’ (2009) 30 Mich J Int’l L 927; TRIAL International/FIDH/ECCHR/Redress/FIBGAR, ‘Make Way For Justice #3. Universal Jurisdiction Annual Review 2017’ (March 2017).

2  See below §§ 35–36.   

3  See below §§ 31–33.   

4  See below §§ 34.

5  Convention for the Suppression of Unlawful Seizure of Aircraft (adopted 16 December 1970, entered into force 14 October 1971) 860 UNTS 105 (Hague Hijacking Convention).

6  Summary by the Secretary-General in Accordance with Commission Resolution 18 (XXXIV) of the Commission on Human Rights (1978) UN Doc E/CN.4/1314, para 92.

7  Revised Text of the Substantive Parts of the Draft Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Submitted by Sweden (1979) UN Doc E/CN.4/WG.1/WP.1.

8  See above § 5.

9  Report of the Working Group of the Commission on Human Rights (1980) UN Doc E/CN.4/1367.

10  Report of the Working Group of the Commission on Human Rights (1981) UN Doc E/CN.4/L.1576.

11  See below Art 7 §§ 85–87.

12  E/CN.4/1983/L.40.

13  Report of the Working Group of the Commission on Human Rights (1984) UN Doc E/CN.4/1984/72.

14  J Herman Burgers and Hans Danelius, The United Nations Convention against Torture: A Handbook on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Martinus Nijhoff 1988) 134.

15  HBA et al v Canada, No 536/2013, UN Doc CAT/C/56/D/536/2013, 2 December 2015; see below Art 22, § 33.

16  The counsel sent the letter to the Attorney General of Canada on 19 September, a month prior to the expected visit of Mr. Bush. The Attorney General’s reply was dated with 7 November and merely acknowledged the receipt of the letter. Mr. Bush had left the country by then. See HBA et al v Canada, No 536/2013 (n 15) para 9.2.

17  The complaint also raised violations of Arts 5(2) and 7(1): ibid, para 3.4.

18  ibid, para 4.2.

19  ibid, para 4.3. With a view to corroborate its decision, the State party asserted that no prosecution could go forward on the basis of the information package received by the complainant’s counsel, since it did not meet the evidentiary burden required to lay charges or obtain a conviction. The State party also alleged that the timing and volume of the information provided to the Attorney General would not have permitted a thorough investigation within the few weeks prior to Bush’s visit to Canada. Furthermore, according to the State party, the timing was also inadequate for the Attorney General to make a properly informed decision on the necessary consent in relation to the intended private prosecution (ibid, para 4.7.). With regard to its obligation to ensure the continuing presence of Mr. Bush, Canada argued that since the complainants’ allegations referred to executive acts of a US president, pertaining evidence would be only available in the US. In the absence of a reasonable expectation to obtain assistance from the US authorities, however, the State party allegedly had no basis on which it could take Bush into custody. Hence, according to Canada, the detention of Bush for the purpose of Article 6 was not warranted (ibid, para 4.3.). The State party further submitted that the Royal Canadian Mounted Police did not conduct an investigation, since there would have been no realistic prospect in October 2011, that sufficient evidence to support a charge against Bush could have been assembled so as to justify detention (ibid, para 4.17.). It concluded that it neither possessed key evidentiary elements nor were it likely to obtain them. Hence, the State party argued, the Royal Canadian Mounted Police did not launch an investigation, and maintained that it was an entirely reasonable conclusion (ibid, para 4.18.). The State party further argued that any decision to detain an alleged perpetrator in transit through Canada would require a consideration of the results of a criminal investigation. Only if an investigation reveals reasonable and probable grounds to believe an offence has been committed the alleged perpetrator can be put under arrest. Should charges not be laid within twenty-four hours, detention cannot continue (ibid, para 4.17.).

20  See below Art 22, § 33.

21  See also the submissions of the complainants and their counsels to the CAT Committee: CCR/CCIJ, ‘Hassan Bin Attash, Sami El-Hajj, Muhammed Khan Tumani, and Murat Kurnaz v Canada, Communication presented to the Committee against Torture, Pursuant to Article 22 of the Convention against Torture for Violation of Articles 5, 6 and 7 of the Convention’ 14 November 2012; CCR/CCIJ, ‘Re: CAT/536/2013, Hassan bin Attash et al, Communication against Canada, Reply to Supplemental Submission (Alleged Violation of Articles 5(2), 6 and 7 of the Convention against Torture)’ 17 July 2014.

22  See HBA et al v Canada, No 536/2013 (n 15) para 4.7.   

23  ibid, para 4.16.

24  ibid, para 4.18; see also Manfred Nowak and Elizabeth McArthur, The United Nations Convention against Torture: A Commentary (Oxford University Press 2008) 361.

25  HBA et al v Canada, No. 536/2013 (n 15) para 4.17.

26  See Burgers and Danelius (n 14) 134; Chris Ingelse, The UN Committee against Torture: An Assessment (Kluwer Law International 2001) 327; see also Berg (n 1) 264. Similar provisions are also included in the Convention for the Suppression of Unlawful Seizure of Aircraft (n 5) Art 6; Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (adopted 23 September 1971, entered into force 26 January 1973) 974 UNTS 177 (Montreal Convention) Art 6; Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents (adopted 14 December 1973, entered into force 20 February 1977) 1035 UNTS 167 Art 6; International Convention against the Taking of Hostages (adopted 17 December 1979, entered into 3 June 1983) 1316 UNTS 205 Art 6.

27  On the interpretation of Art 9(3) CCPR see Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd edn, NP Engel 2005) 230ff.

28  E/CN.4/1314 (n 6). See above § 5.