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United Nations




A/63/175




General Assembly




Distr.: General

28 July 2008


Original: English










Sixty third session


* A/63/150.


Item 67 (a) of the provisional agenda*

Promotion and protection of human rights: implementation of

human rights instruments


Torture and other cruel, inhuman or degrading treatment or punishment

Note by the Secretary-General

The Secretary-General has the honour to transmit to the members of the General Assembly the interim report of the Special Rapporteur of the Human Rights Council on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak, submitted in accordance with Assembly resolution 62/148.



Interim report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment


Summary

In the present report, submitted pursuant to General Assembly resolution 62/148, the Special Rapporteur addresses issues of special concern to him, in particular overall trends and developments with respect to questions falling within his mandate.

The Special Rapporteur draws the attention of the General Assembly to the situation of persons with disabilities, who are frequently subjected to neglect, severe forms of restraint and seclusion, as well as physical, mental and sexual violence. He is concerned that such practices, perpetrated in public institutions, as well as in the private sphere, remain invisible and are not recognized as torture or other cruel, inhuman or degrading treatment or punishment. The recent entry into force of the Convention on the Rights of Persons with Disabilities and its Optional Protocol provides a timely opportunity to review the anti-torture framework in relation to persons with disabilities. By reframing violence and abuse perpetrated against persons with disabilities as torture or a form of ill-treatment, victims and advocates can be afforded stronger legal protection and redress for violations of human rights.

In section IV, the Special Rapporteur examines the use of solitary confinement. The practice has a clearly documented negative impact on mental health, and therefore should be used only in exceptional circumstances or when absolutely necessary for criminal investigation purposes. In all cases, solitary confinement should be used for the shortest period of time. The Special Rapporteur draws attention to the Istanbul Statement on the Use and Effects of Solitary Confinement, annexed to the report, as a useful tool to promote the respect and protection of the rights of detainees.




Contents







Paragraphs

Page

  1. Introduction

1–4

4

  1. Activities related to the mandate

5–36

4

  1. Protecting persons with disabilities from torture

37–76

8

    1. Legal framework for the protection of persons with disabilities from torture

42–44

9

    1. Applying the torture and ill-treatment protection framework to persons with disabilities

45–69

10

    1. Conclusions and recommendations

70–76

18

  1. Solitary confinement

77–85

18

Annex







Istanbul Statement on the Use and Effects of Solitary Confinement

22

I. Introduction

1. The present report is the tenth submitted to the General Assembly by the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment. It is submitted pursuant to General Assembly resolution 62/148 (para. 32). It is the fourth report submitted by the present mandate holder, Manfred Nowak. The report includes issues of special concern to the Special Rapporteur, in particular overall trends and developments with respect to issues falling within his mandate.

2. The Special Rapporteur draws attention to document A/HRC/7/3, his main report to the Human Rights Council, in which he explored the influence of international norms relating to violence against women on the definition of torture and the extent to which the definition itself can embrace gender sensitivity and discussed the specific obligations upon States which follow from this approach. According to the Special Rapporteur, the global campaign to end violence against women when viewed through the prism of the anti-torture framework can be strengthened and afforded a broader scope of prevention, protection, justice and reparation for women than currently exists.

3. Document A/HRC/7/3/Add.1 covered the period 16 December 2006 to 14 December 2007 and contained allegations of individual cases of torture or general references to the phenomenon of torture, urgent appeals on behalf of individuals who might be at risk of torture or other forms of ill-treatment, as well as responses by Governments. The Special Rapporteur continues to observe that the majority of communications are not responded to by Governments.

4. Document A/HRC/7/3/Add.2 contains a summary of the information provided by Governments and non-governmental organizations (NGOs) on implementation of recommendations of the Special Rapporteur following country visits. The Government of Mongolia has not provided any follow-up information since the visit was carried out in June 2005. Documents A/HRC/7/3/Add.3 to 7 are reports of country visits to Paraguay, Nigeria, Togo, Sri Lanka and Indonesia, respectively.

II. Activities related to the mandate

5. The Special Rapporteur draws the attention of the General Assembly to the activities he has carried out pursuant to his mandate since the submission of his report to the Human Rights Council (A/HRC/7/3 and Add.1-7).



Communications concerning human rights violations

6. During the period from 15 December 2007 to 25 July 2008, the Special Rapporteur sent 42 letters of allegations of torture to 34 Governments, and 107 urgent appeals on behalf of persons who might be at risk of torture or other forms of ill-treatment to 42 Governments. In the same period 39 responses were received.



Country visits

7. With respect to fact-finding missions, the Special Rapporteur was to undertake a visit to Equatorial Guinea from 30 January to 8 February 2008; however, the Government requested postponement of the visit. In a meeting at the Human Rights Council on 5 March 2008, the Vice-Prime Minister for Human Rights assured the Special Rapporteur that the visit would take place between 18 and 26 October 2008. Dates for the visit to Iraq are still under consideration. The Special Rapporteur continues to express the wish that dates for the visit to the Russian Federation, originally postponed in October 2006, will be forthcoming.

8. The Special Rapporteur undertook a visit to Denmark, including Greenland, from 2 to 9 May 2008. He expressed his appreciation to the Government for the full cooperation extended to him and paid tribute to Denmark’s long-standing leadership in anti-torture efforts worldwide. He noted that no allegations of torture and very few complaints of ill-treatment were received during the visit. However, he regretted that a specific crime of torture is still missing in Danish criminal law. 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. The Special Rapporteur commended the Government’s efforts in carrying out successful awareness-raising campaigns on domestic violence and trafficking of women. In Greenland, action against domestic violence has so far not received adequate attention despite the severity of the problem. Notwithstanding the Government’s efforts to restrict the use of solitary confinement, the extensive recourse to this practice remains a major concern, particularly with respect to pre trial detainees. The Special Rapporteur noted with concern allegations about 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.

9. The Special Rapporteur on the question of torture, together with the Special Rapporteur on violence against women, its causes and consequences, visited Moldova, including the Transnistrian region, from 4 to 11 July 2008. The Special Rapporteurs expressed appreciation to the Government for its full cooperation and stressed that Moldova has made great progress in human rights protection since independence in 1991. They commended the adequate legal frameworks that have been put in place in regard to violence against women as well as to torture. In that context, they welcomed 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 and Other Cruel, Inhuman or Degrading Treatment or Punishment. However, they noted with concern the significant gaps between the normative framework and the reality on the ground. They stressed in particular that violence against women had not received enough attention and that the protective infrastructure for victims of violence was insufficient. They also observed that ill-treatment during the initial period of police custody was widespread and that complaints mechanisms were largely ineffective. 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. The Special Rapporteurs called for the effective implementation of existing laws and better protection mechanisms for labour migrants. They recommended that safeguards for detainees be strengthened and that rehabilitation and reintegration be put at the centre of Moldova’s penal policies and laws.

10. The Special Rapporteur recalls requests for invitations sent to the following States: Algeria (request first made in 1997); Afghanistan (2005); Belarus (2005); Bolivia (2005); Côte d’Ivoire (2005); Egypt (1996); Eritrea (2005); Ethiopia (2005); Fiji (2006); Gambia (2006); India (1993); Iran (Islamic Republic of) (2005); Israel (2002); Liberia (2006); Libyan Arab Jamahiriya (2005); Papua New Guinea (2006); Saudi Arabia (2005); Syrian Arab Republic (2005); Tunisia (1998); Turkmenistan (2003); Uzbekistan (2006); Yemen (2005); and Zimbabwe (2005). He regrets that some of these requests are long-standing.

Key press statements

11. On 4 January 2008, the Special Rapporteur jointly with other special procedures mandate holders issued a statement expressing deep concern at the loss of life and destruction of property following election-related violence in Kenya.

12. On 10 April, jointly with other mandate holders, the Special Rapporteur issued a statement calling for restraint and transparency as mass arrests were reported in the Tibetan Autonomous Region of China and surrounding areas.

13. On 29 April, the Special Rapporteur issued a joint statement with other mandate holders concerning acts of intimidation, violence and torture related to the parliamentary and presidential elections in Zimbabwe.

14. On 26 June, on the occasion of the International Day in Support of Victims of Torture, the Special Rapporteur, together with the Special Rapporteur on violence against women, the Committee against Torture, the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Board of Trustees of the United Nations Voluntary Fund for Victims of Torture and the United Nations High Commissioner for Human Rights, issued a joint statement. It called attention to, among other things, the need to strengthen the protection of women and persons with disabilities from torture and ill-treatment.

15. On 26 June, the Special Rapporteur issued a joint statement with other mandate holders concerning widespread reports of politically motivated violence in Zimbabwe in the country’s presidential run-off election scheduled for 27 June.



Highlights of key presentations/consultations/training courses

16. On 23 February, the Special Rapporteur delivered the opening speech entitled “Instruments that Zimbabwean civil society can use in the fight against torture”, in Harare, on the occasion of the tenth anniversary of the Human Rights NGO Forum.

17. On 11 March, the Special Rapporteur participated in a panel discussion on “Strengthening the protection of women from torture: applying a gender-sensitive definition of torture”, which was organized by the Office of the United Nations High Commissioner for Human Rights and the Government of Switzerland.

18. On 12 March, the Special Rapporteur chaired a panel discussion at the Human Rights Council on “The role of doctors in the fight against torture”.

19. On 14 March, the Special Rapporteur held consultations with the Director and staff of the Division of International Protection Services of the Office of the United Nations High Commissioner for Refugees. Matters of mutual interest were discussed as well as ways and means to strengthen cooperation.

20. On 27 March, the Special Rapporteur held a meeting with representatives of the Ministry of Justice of Austria in Vienna on the use of tasers.

21. On 3 April, the Special Rapporteur participated in a meeting organized by the Geneva Academy of International Humanitarian Law and Human Rights on the “Agenda for Human Rights”, an initiative of the Government of Switzerland to commemorate the sixtieth anniversary of the Universal Declaration of Human Rights.

22. On 14 and 15 April, at the Dead Sea in Jordan, the Special Rapporteur delivered the keynote presentation and participated in the regional training programme on human rights for the Middle East and North Africa region, organized by the Raoul Wallenberg Institute and Adalah, a local NGO.

23. On 17 April, at a meeting organized by Amnesty International in Mannheim, Germany, the Special Rapporteur delivered a presentation on “Torture and terrorism. Current challenges to the prohibition of torture in the fight against terrorism”.

24. On 18 April, in Strasbourg, France, the Special Rapporteur held discussions with the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) on matters of mutual interest as well as on ways and means to strengthen cooperation.

25. On 23 and 24 April, as a follow-up to his predecessor’s study on the situation of trade in and production of equipment which is specifically designed to inflict torture (see E/CN.4/2005/62), the Special Rapporteur participated in an international expert meeting to review and further develop national, regional and international controls on the transfer of security equipment used for torture. The meeting was organized by Amnesty International and the Omega Foundation in London.

26. On 30 April, the Special Rapporteur conducted a seminar at the Vienna Diplomatic Academy, Vienna, entitled “The international struggle against torture”.

27. On 19 and 20 May, the Special Rapporteur participated in a workshop organized by the Council of Europe and the European Union in St. Petersburg, Russian Federation, on “Complaints against the police”.

28. On 2 and 3 June, the Special Rapporteur held meetings with representatives of the International Criminal Court, the International Criminal Tribunal for the Former Yugoslavia and the Special Court for Sierra Leone at The Hague.

29. On 6 June, at the American University in Washington, D.C., he led a panel discussion on “The future of United Nations special procedures”. On 9 June, he gave a speech on “How to Incorporate United Nations special procedures in a human rights strategy” also at the American University. On 10 June, at the Washington Convention Center, he participated in a panel discussion organized by the American Civil Liberties Union on “Linking the Universal Declaration of Human Rights to United States’ civil liberties”.

30. On 10 June, he held consultations with representatives of the United States Congressional Human Rights Caucus about the Optional Protocol to the Convention against Torture and other questions related to the mandate.

31. On 11 and 12 June, the Special Rapporteur participated, at the invitation of the Ministry of Foreign Affairs of Norway, in a meeting on the further development of the “Agenda for Human Rights”. The meeting was organized by the Geneva Academy of International Humanitarian Law and Human Rights

32. On 16 June, the Special Rapporteur participated in an expert meeting in Berlin organized by Amnesty International, the Walther Schucking Institute and the Heinrich Böll Foundation on the application of United Nations human rights treaties to troops participating in United Nations peace operations.

33. On 23 June, the Special Rapporteur held a meeting in Geneva with members of the Subcommittee on Prevention to discuss matters of mutual concern.

34. On 24 June 2008, the Special Rapporteur took part in a round table on international aviation law sponsored by REDRESS and the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism with the support of the Office of the High Commissioner for Human Rights.

35. On 25 June 2008, on the occasion of the International Day in Support of Victims of Torture on 26 June, he attended an event organized in Brussels by the European Parliament Subcommittee on Human Rights to discuss the prohibition of torture.

36. On 19 July 2008, at the Diplomatic Conference “Living the UDHR after 60 Years: challenges for the European Union” organized by the European Inter-University Centre for Human Rights and Democratisation in Venice, Italy, the Special Rapporteur gave a presentation on the question “Is there a need for a coordinated European policy relating to the principle of non-refoulement?”.



III. Protecting persons with disabilities from torture

37. In the exercise of his mandate, the Special Rapporteur has received information1 about different forms of violence and abuse inflicted against persons with disabilities — men, women and children.2 But for their disability, such individuals are targets for neglect and abuse.

38. Persons with disabilities are often segregated from society in institutions, including prisons, social care centres, orphanages and mental health institutions. They are deprived of their liberty for long periods of time including what may amount to a lifelong experience, either against their will or without their free and informed consent. Inside these institutions, persons with disabilities are frequently subjected to unspeakable indignities, neglect, severe forms of restraint and seclusion, as well as physical, mental and sexual violence.3 The lack of reasonable accommodation in detention facilities may increase the risk of exposure to neglect, violence, abuse, torture and ill-treatment.

39. In the private sphere, persons with disabilities are especially vulnerable to violence and abuse, including sexual abuse, inside the home, at the hands of family members, caregivers, health professionals and members of the community.4

40. Persons with disabilities are exposed to medical experimentation and intrusive and irreversible medical treatments without their consent (e.g. sterilization, abortion and interventions aiming to correct or alleviate a disability, such as electroshock treatment and mind-altering drugs including neuroleptics).

41. The Special Rapporteur is concerned that in many cases such practices, when perpetrated against persons with disabilities, remain invisible or are being justified, and are not recognized as torture or other cruel, inhuman or degrading treatment or punishment. The recent entry into force of the Convention on the Rights of Persons with Disabilities and its Optional Protocol provides a timely opportunity to review the anti-torture framework in relation to persons with disabilities.



A. Legal framework for the protection of persons with disabilities against torture

42. The absolute prohibition of torture contained in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, article 7 of the International Covenant on Civil and Political Rights, and article 37 of the Convention on the Rights of the Child, is reaffirmed in the Convention on the Rights of Persons with Disabilities. According to article 15 of the that Convention, persons with disabilities have the right not to be subjected to torture or to cruel, inhuman, or degrading treatment or punishment and, in particular, to scientific or medical experimentation. Article 15, paragraph 2, contains the obligation for States parties to take all effective legislative, administrative, judicial or other measures to protect persons with disabilities from torture or ill-treatment on an equal basis with others.

43. Article 16 prohibits violence, abuse and exploitation of persons with disabilities, and article 17 recognizes the right of every person with disabilities to respect for his or her physical and mental integrity.

44. The Special Rapporteur notes that in relation to persons with disabilities, the Convention on the Rights of Persons with Disabilities complements other human rights instruments on the prohibition of torture and ill-treatment by providing further authoritative guidance. For instance, article 3 of the Convention proclaims the principle of respect for the individual autonomy of persons with disabilities and the freedom to make their own choices. Further, article 12 recognizes their equal right to enjoy legal capacity in all areas of life, such as deciding where to live and whether to accept medical treatment. In addition, article 25 recognizes that medical care of persons with disabilities must be based on their free and informed consent. Thus, in the case of earlier non-binding standards, such as the 1991 Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care (resolution 46/119, annex), known as the MI Principles,5 the Special Rapporteur notes that the acceptance of involuntary treatment and involuntary confinement runs counter to the provisions of the Convention on the Rights of Persons with Disabilities.


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