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Statement by Manfred Nowak, Special Rapporteur on Torture
at the 10th session of the Human Rights Council


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10 March 2009
Geneva






Mr Chairperson, Distinguished Members and Observers of the Council,

Country visits

Mr. Chairperson,

Allow me to first introduce to the Council my reports of country visits to Denmark and Moldova and my preliminary note on Equatorial Guinea.

Denmark

I undertook a visit to Denmark, including Greenland, from 2 to 9 May 2008. I would like to pay tribute to Denmark’s long-standing leadership in anti-torture efforts worldwide and express my great appreciation to the Government for its full cooperation. It is noteworthy that I received no allegations of torture and very few complaints of ill-treatment. I also noted positively that the hallmark of the prison system in Denmark is the “principle of normalization”, meaning that life inside reflects, to as great an extent as possible, life outside the prison. Taken together with an attentive approach to the concerns of detainees by prison staff, the result is generally a high standard of conditions of detention inside Danish prisons. Furthermore, I commended the Government’s efforts in carrying out successful awareness-raising campaigns on domestic violence and trafficking of women. At the same time, I raised some concerns, such as the fact that no specific crime of torture has been introduced in Danish criminal law. Furthermore, the relatively frequent recourse to solitary confinement remains problematic, particularly with respect to pre-trial detainees. I also expressed concern about allegations in relation to United States Central Intelligence Agency rendition flights operating through Denmark and Greenland and plans to resort to diplomatic assurances to return suspected terrorists to countries known for their practice of torture. Lastly, I noted with regret that, in Greenland, action against domestic violence has so far not received adequate attention despite the severity of the problem. In conclusion of my visit, I recommended that these concerns be addressed.

Moldova

Together with the Special Rapporteur on violence against women, its causes and consequences, I visited Moldova, including the Transnistrian region, from 4 to 11 July 2008. Again I would like to express appreciation to the Government for its cooperation. Moldova has made great progress in human rights protection since its independence in 1991. The legal framework and policies that have been put in place with regard to violence against women as well as to torture overall are adequate and reflect international standards. The Special Rapporteur on Violence against Women and I noted in particular the recent law on preventing and combating family violence and the establishment of a national preventive mechanism under the Optional Protocol to the Convention against Torture. However, we were concerned at the significant gaps between the normative framework and the reality on the ground. In particular, violence against women has not received enough attention and the protective infrastructure for victims of violence is insufficient. We found ill-treatment during the initial period of police custody to be widespread and complaints mechanisms to have little effect. Whereas conditions in the detention centres under the Ministry of Justice had somewhat improved, conditions in police custody facilities were still a source of major concern. We called for the effective implementation of existing laws and better protection mechanisms for labour migrants. We recommended that safeguards for detainees be strengthened and that rehabilitation and reintegration be put at the centre of Moldova’s penal policies and laws.

Equatorial Guinea

I undertook a visit to Equatorial Guinea from 9 to 18 November 2008. I have issued a preliminary note, and a full report will be published in due course. I would like to express my gratitude for the invitation, which must be interpreted as a sign of the Government’s preparedness to subject its places of detention to independent scrutiny by an external, objective expert. I noted a number of positive developments, such as the adoption of a comprehensive law prohibiting torture and providing for the prosecution of torturers in 2006 and some improvement, including through refurbishment, of the conditions in a number of places of detention. However, overall - on the basis of discussions with public officials, judges, lawyers and representatives of civil society, interviews with victims of violence and with persons deprived of their liberty, often supported by forensic medical evidence – I regret to report that I found that torture in police and custody was systematic. In addition, a number of cases of corporal punishment in prisons were reported to me. I found impunity to be quasi-total as well: in all but one case, neither safeguards against ill-treatment nor complaints mechanisms were effective and perpetrators of torture and ill-treatment were not prosecuted. On the contrary, most victims experienced a total lack of justice, which, combined with the physical and psychological consequences of ill-treatment and the absence of any rehabilitation or compensation mechanism, caused ongoing suffering. Conditions in most police and gendarmerie cells were not in line with international standards, violated human dignity and amounted to inhuman and degrading treatment. The hygienic conditions and lack of toilets and of other sanitary facilities in almost all police detention cells (with the exception of Bata Central Police Station) as well as severe restrictions on food supply, on access to sanitary facilities, to medical treatment and medicine showed a complete disregard for the dignity of detainees. With regard to Black Beach Prison, I expressed serious concerns related to persons held in solitary confinement wearing leg irons for prolonged periods of up to four years. In violation of international norms, in police and gendarmerie custody women and children were not separated from male adults and were therefore extremely vulnerable to sexual violence and other forms of abuse. Also immigrants detained pending deportation were frequently held in police detention in poor conditions for very long periods and subjected to discriminatory practices. Therefore, in order for Equatorial Guinea to comply with its obligations under both international human rights law and its Constitution, a comprehensive institutional and legal overhaul establishing law enforcement bodies based on the rule of law, an independent judiciary, and effective monitoring and accountability mechanisms are necessary to effectively combat torture. I also would like to caution that the international community, including trans-national corporations, should ensure that, in their development cooperation and business practices, they are not complicit in violations of human rights by state authorities.

Follow-up to country reports

Mr. Chairperson,

The three country visits undertaken in 2008 are well placed to demonstrate a point crucial for successful follow-up: inviting the Special Rapporteur on Torture means allowing scrutiny by an independent expert, which may lead to critical findings with which the host Government might disagree. However, whereas, pursuant to the visits, Denmark and Moldova embarked on a very frank and open dialogue, declared that they would examine all the issues and cases identified by the Special Rapporteur and took steps to do so, in a first reaction, Equatorial Guinea rejected my observations altogether and accused me of political bias. I am very concerned about this attitude, because it is primarily the Government that needs to follow-up on my recommendations – and if it is not willing to do so, there is little that I or anybody else can do to improve the situation. I therefore would like to call on all States, including Equatorial Guinea, to see me as a “tool” to independently assess what is going on behind the closed doors of detention facilities, but then also to use this as the basis for real change and improvement.

On a more general note, allow me to mention that, as a further step to improve the follow-up to country visits, the format of the follow-up report has been modified with the aim of rendering it more reader-friendly and of facilitating the identification of concrete steps taken in response to the recommendations. For this reason, so-called follow-up tables have been created, which contain the recommendations given in the respective reports, a brief description of the situation when the country visit was undertaken, an overview of steps taken in previous years and included in previous follow-up reports and, in the last column, measures taken in the current year on the basis of information gathered from governmental and non-governmental sources. In this context, I regret that, out of the eight countries I have asked for their input last year, only two provided information and comments. I look forward to more responses this year.

I would also briefly like to turn to two past reports jointly written by a number of mandate holders: the report on Sudan written by seven Special Procedures mandate holders pursuant to Human Rights Council resolution 4/8 to ensure effective follow-up to earlier recommendations by human rights mechanisms, and the report on the United States regarding the detention facilities at Guantanamo Bay. In relation to Sudan I am disappointed that, in my assessment, too little has been done to implement – and monitor the implementation – of the recommendations compiled by the Group of Experts. I wish to underline that such initiatives make sense only if followed-up on a mid- and even long-term basis. With regard to the Guantanamo report I am happy to say that, whereas the previous United States Administration simply rejected it and made only half-hearted efforts to follow our recommendations to close the detention facilities at Guantanamo Bay, the new Administration has markedly changed the policy. On his second day in office, President Barack Obama issued three Executive Orders, ordering the closure of Guantanamo Bay and secret places of detention run by the Central Intelligence Agency, the prohibition of unlawful interrogation methods and a review of detention policy options for persons apprehended in relation to armed conflicts and counterterrorism operations. When I recently informally met with representatives of the Administration in Washington, they reassured me that all the 241 detainees remaining in the Guantanamo facilities would be subjected to a review aimed at either bringing them to justice before criminal courts in the United States, voluntarily repatriating them to their countries of origin, or resettling them in third countries. In this context, I wish to reiterate my call on other countries - in a spirit of burden sharing - to grant Guantanamo detainees residence on their territory, thereby facilitating the closure of Guantanamo Bay as expeditiously as possible. I also wish to refer to a study focusing at secret places of detention around the world that Martin Scheinin, the Special Rapporteur on the promotion and protection of human rights while countering terrorism and I are jointly undertaking to shed light on this practice, which has been found to greatly facilitate the commission of torture and ill-treatment.

Pending visits

I wish to report to the Council that I have still not received concrete dates for the visit to the Russian Federation, which was scheduled to take place in September 2006 and was postponed by the Government at the last minute. I have been informed that preparations are underway by the Government of Iraq to receive me. I look forward to undertaking this critically important mission. I also look forward to visiting Uruguay in March, Kazakhstan in May and Cuba in the early autumn. Both have recently issued invitations to me.

Let me now turn to the two themes dealt with in the present report:

The death penalty in light of the prohibition of cruel, inhuman and degrading punishment

Following a question to this effect asked during the interactive dialogue before the General Assembly in October 2008, I sought to explore different angles of the question. On the basis of jurisprudence and General Assembly resolutions, I observed that, to date, the death penalty has been primarily addressed in relation to the right to life, and that the last 60 years have seen a clear trend towards its abolition. However, in that context it is clear that, if a State has not undertaken any legal international obligations to abolish the death penalty, its further use does not constitute a violation of the right to life. I then asked the question whether capital punishment is to be considered cruel, inhuman or degrading punishment in the sense of article 7 of the International Covenant on Civil and Political Rights or article 16 of the Convention against Torture. In this regard I proposed to interpret the death penalty in light of the present-day understanding of “cruel, inhuman or degrading treatment and punishment”. The latter has been evolving over the last decades as can be seen from jurisprudence on corporal punishment. Whereas, when the first international human rights instruments were adopted in the 1950s, corporal punishment was widely accepted, in particular as chastisement in the family and as disciplinary punishment in schools, prisons, the military and similar institutions, this attitude changed significantly during the 1960s and 1970s. The jurisprudence of the the United Nations Human Rights Committee and Committee against Torture, the European Court of Human Rights, , the Inter-American Court of Human Rights, the African Commission on Human and Peoples’ Rights and national courts have qualified corporal punishment in all its forms, as a judicial or criminal sanction, whether imposed by State authorities or by private actors, including schools and parents, as cruel, inhuman or degrading punishment and therefore strictly forbidden under international law. The question therefore arises whether this legal reasoning should not be equally applied to capital punishment, which can be seen as an aggravated form of corporal punishment. However, in spite of some decisions finding for example detention on death row or certain execution methods to constitute cruel, inhuman and degrading punishment, the jurisprudence of international human rights monitoring bodies has never arrived at the conclusion that capital punishment per se violates the prohibition of cruel, inhuman and degrading punishment. Another noteworthy aspect is that, when finding that corporal punishment amounts to cruel, inhuman and degrading treatment, the international human rights monitoring bodies did not examine the suffering caused by physical chastisement itself. On the contrary, several of them stressed that, rather than direct suffering or the consequences, it was the attack on human dignity of the punishment, the fact that persons were treated as objects, that constituted the violation. Also the General Assembly, in its resolution 62/149, justified this by stating that the use of the death penalty undermined human dignity. I therefore conclude that the distinction between corporal and capital punishment is increasingly challenged by the dynamic method of interpretation of the right to personal integrity and human dignity and the universal trend towards the abolition of capital punishment. I recommend that the Human Rights Council follow the call of the General Assembly in paragraph 4 of its resolution 62/149 to continue the work of the Commission on Human Rights in respect of the question of the death penalty and request a more comprehensive legal study on the compatibility of the death penalty with the right not to be subjected to cruel, inhuman or degrading punishment under present human rights law.



Applying a human rights-based approach to drug policies

A number of human rights have been affected by how drug control policies are currently shaped, both at the international and national levels. While the three major conventions relating to drugs, although referring to prevention and rehabilitation, left it to individual States to devise their policies in this area, the international drug control system has evolved practically detached from the United Nations human rights machinery, which could have provided valuable guidance on how the above references should be interpreted, taking into account international human rights norms. In my report, I therefore examine a number of areas where torture and ill-treatment occur as a direct or indirect result of current approaches to drug control. Regarding the challenges posed to criminal justice systems by punitive drug policies, in the course of several of my country visits, I have noted violations in the following areas: lack of access to medical treatment, including prevention of infectious diseases, and the use of drug substitutes during detention. In this context I wish to state clearly that for example withdrawal symptoms can cause severe pain and suffering if not alleviated by appropriate medical treatment and that, if they are used for any of the purposes cited in the definition of torture enshrined in article 1 of the Convention against Torture, this might amount to torture. The same is true for denial of medical treatment or restrictions on access to prevention. States have a positive obligation to ensure the same access to prevention and treatment in places of detention as outside. I also wish to underline the requirement of consent when it comes to testing and treatment, which becomes even more stringent in custody situations. If testing or treatment is carried out forcibly on a discriminatory basis without respecting consent and necessity requirements, it may constitute degrading treatment, especially in a detention setting. I am also concerned that, in many countries, persons accused or convicted of drug-related crimes are subject to the death penalty and various forms of discriminatory treatment in places of detention, including solitary confinement, special prison regimes and poor detention conditions. Secondly, I explored the question of access to palliative care and pain relief. Worldwide, millions of people continue to suffer from severe pain that often could be alleviated by drug-based palliative care and pain relief. Apart from other reasons, such as poverty and overall problems relating to health care, restrictive drug policies have contributed to a situation in which access to narcotic drugs is still severely restricted and sometimes unavailable, in particular in the global South. I am of the opinion that the de facto denial of access to pain relief, if it causes severe pain and suffering, constitutes cruel, inhuman or degrading treatment or punishment. I therefore call on the Human Rights Council to take up the question of drug policies in the light of international obligations in the area of human rights. With a view to ensuring that international human rights norms are fully incorporated in States’ legal frameworks governing drug dependence treatment and rehabilitation services, I made a number of recommendations regarding the review of international drug policies pursuant to a 1998 General Assembly decision, which is to start in Vienna tomorrow.

Mr Chairperson, Distinguished Members and Observers of the Council,

I thank you for your attention, and look forward to a fruitful interactive dialogue.