Combating Torture: 2 - Safeguards Against Torture for Those Deprived of Their Liberty

2.1 This chapter outlines the safeguards that exist in international law to protect people in detention from torture and other forms of ill-treatment.

2.2 Everyone has the right to liberty and security of person -- including the right to be free from arbitrary arrest or detention.¹ When the state deprives a person of liberty, it assumes a duty of care to maintain that person's safety and safeguard his or her welfare. Detainees are not to be subjected to any hardship or constraint other than that resulting from the deprivation of liberty.² These rights are guaranteed by Article 7 and 10(1) of the International Covenant on Civil and Political Rights (ICCPR) which, respectively, prohibit torture and ill-treatment and safeguard the rights of people deprived of their liberty. They are also reflected in a number of other international human rights treaties.³ The prohibition on torture and ill-treatment apply to all people all the time. Certain rights in the treaties, such as the right not to be subject to arbitrary detention, may under certain circumstances be restricted in a public emergency, but safeguards necessary for the prohibition of torture, such as limiting periods in which people can be held in incommunicado detention, must continue to apply.⁴

2.3 Individuals may be at risk of torture or ill-treatment before they are subject to legal formalities such as arrest and charge.⁵ Indeed the European Committee for the Prevention of Torture (CPT) has stressed that it is during the period immediately following deprivation of liberty that the risk of torture and ill-treatment is at its greatest.⁶ The following international standards, therefore, apply from the moment that someone is deprived of his or her liberty.

Notifying people of their rights

2.4 Everyone deprived of liberty has the right to be given a reason for the arrest and detention. Article 9(1) of the ICCPR states that: 'Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law.' Article 9(2) of the ICCPR states that: 'Anyone who is arrested shall be informed, at the time of arrest, of the reasons for arrest and shall be informed promptly of any charges against him.' The Human Rights Committee has stated that it is not sufficient simply to inform a detainee that he or she has been arrested without any indication of the substance of the complaint against him or her.⁷ Even in 'national security cases', police and security officials are required to provide written reasons for a person's arrest, which should be made public and subject to review by the courts.⁸

2.5 The European Court of Human Rights has stated that every person arrested should 'be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness.'⁹ The CPT has recommended that everyone who is deprived of his/her liberty should be informed of their right to notify a person of their choice, their right to have access to a lawyer and their right to have access to a doctor including to a doctor of their choice. These rights should apply from the very outset of their custody (i.e. from the moment when they are obliged to remain with the police).¹⁰ The CPT has also recommended that: 'a form setting out these rights be given systematically to [persons in custody] at the outset of custody. This form should be available in different languages. Further, the detainee should be asked to sign a statement attesting that he has been informed of these rights.'¹¹

2.6 The UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment provide that 'any person shall, at the moment of arrest and at the commencement of detention or imprisonment, or promptly thereafter, be provided by the authority responsible for his arrest, detention or imprisonment, respectively with information on and an explanation of his rights and how to avail himself of such rights.'¹²

Use of officially recognised places of detention and the maintenance of effective custody records

2.7 The Human Rights Committee has stated that 'to guarantee the effective protection of detained persons, provisions should be made for detainees to be held in places officially recognized as places of detention and for their names and places of detention, as well as for the names of persons responsible for their detention, to be kept in registers readily available and accessible to those concerned, including relatives and friends.'¹³ The European Court of Human Rights has stated that the unacknowledged detention of an individual is a 'complete negation' of the guarantees contained in the European Convention against arbitrary deprivations of the right to liberty and security of the person.¹⁴

2.8 The CPT recommends that there should be a complete custody record for each detainee which should record 'all aspects of custody and action taken regarding them (when deprived of liberty and reasons for that measure; when told of rights; signs of injuries, mental illness, etc; when next of kin/consulate and lawyer contacted and when visited by them; when offered food; when interrogated; when transferred or released, etc). Further, the detainee's lawyers should have access to such a custody record.'¹⁵

2.9 The UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment state that the authorities must keep and maintain up-to-date official registers of all detainees, both at each place of detention and centrally.¹⁶ The information in such registers must be made available to courts and other competent authorities, the detainee, or his or her family.¹⁷ Further to this, these principles state that 'in order to supervise the strict observance of relevant laws and regulations, places of detention shall be visited regularly by qualified and experienced persons appointed by, and responsible to, a competent authority distinct from the authority directly in charge of the administration of the place of detention or imprisonment. A detained or imprisoned person shall have the right to communicate freely and in full confidentiality with the persons who visit the places of detention or imprisonment ... subject to reasonable conditions to ensure security and good order in such places.'¹⁸

2.10 The UN Special Rapporteur on Torture has recommended that: 'Interrogation should take place only at official centres and the maintenance of secret places of detention should be abolished under law. It should be a punishable offence for any official to hold a person in a secret and/or unofficial place of detention. Any evidence obtained from a detainee in an unofficial place of detention and not confirmed by the detainee during interrogation at official locations should not be admitted as evidence in court. No statement or confession made by a person deprived of liberty, other than one made in the presence of a judge or a lawyer, should have a probative value in court, except as evidence against those who are accused of having obtained the confession by unlawful means.'¹⁹

Avoiding incommunicado detention

2.11 International standards do not expressly prohibit incommunicado detention -- where a detainee is denied all contact with the outside world -- in all circumstances. However, international standards provide and expert bodies have maintained that restrictions and delays in granting detainees access to a doctor and lawyer and to having someone notified about their detention are permitted only in very exceptional circumstances for very short periods of time.

2.12 The Human Rights Committee has found that the practice of incommunicado detention is conducive to torture²⁰ and may itself violate Article 7 or Article 10 of the ICCPR.²¹ It has stated that provision should also be made against incommunicado detention as a safeguard against torture and ill-treatment.²² The Inter-American Commission on Human Rights has stated that the practice of incommunicado detention is not in keeping with respect for human rights, as it 'creates a situation conducive to other practices including torture', and punishes the family of the detainee impermissibly.²³ The Inter-American Commission also considers that the right to receive visits from relatives is 'a fundamental requirement' for ensuring respect for the rights of detainees.²⁴ It has stated that the right to visits applies to all detainees, independently of the nature of the offence of which they are accused or convicted, and that regulations allowing only short, infrequent visits and the transfer of detainees to distant facilities are arbitrary sanctions.²⁵

2.13 The UN Commission on Human Rights has stated that 'prolonged incommunicado detention may facilitate the perpetration of torture and can in itself constitute a form of cruel, inhuman or degrading treatment.'²⁶ The UN Special Rapporteur on Torture has stated that 'torture is most frequently practised during incommunicado detention. Incommunicado detention should be made illegal, and persons held incommunicado should be released without delay.'²⁷

2.14 The UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment states that everyone who is arrested, detained or imprisoned has the right to inform, or have the authorities notify, their family or friends.²⁸ The information must include the fact of the arrest or detention and the place where he or she is being kept in custody. If the person is transferred to another place of custody, his or her family or friends must again be informed. This notification is to take place immediately, or at least without delay.²⁹

2.15 Foreign nationals are entitled to have their consulates or other diplomatic representative notified.³⁰ If they are refugees or under the protection of an intergovernmental organisation, they have the right to communicate or receive visits from representatives of the competent international organisation.³¹

Humane conditions of detention

2.16 The Human Rights Committee has stated that the duty to treat detainees with respect for their inherent dignity is a basic standard of universal application. States cannot claim a lack of material resources or financial difficulties as a justification for inhumane treatment. States are obliged to provide all detainees and prisoners with services that will satisfy their essential needs.³² Failure to provide adequate food and recreational facilities constitutes a violation of Article 10 of the ICCPR, unless there are exceptional circumstances.³³ The Committee has also stated that prolonged solitary confinement may amount to a violation of the prohibition against torture and ill-treatment in Article 7 of the ICCPR.³⁴

2.17 The Human Rights Committee has instructed states to ensure that all places of detention are free from any equipment liable to be used for inflicting torture or ill-treatment.³⁵ The Committee against Torture has recommended that states abolish the use of electro-shock stun belts and restraint chairs as a method of restraining those in custody as their use 'almost invariably' results in practices that amount to cruel, inhuman or degrading treatment or punishment.³⁶

2.18 The UN Body of Principles for the Protection of all Persons under Any Form of Detention or Imprisonment state that everyone detained or imprisoned has the right to request improvements in their treatment or to complain about their treatment. The authorities must reply promptly, and if the request or complaint is refused, it may be brought to a judicial or other authority.³⁷

2.19 The Standard Minimum Rules on the Treatment of Prisoners state that restraints, such as handcuffs, chains, irons and strait-jackets, should only be used on detained or imprisoned people for genuine security reasons, and not as a punishment.³⁸ When used, restraints must not be applied for longer than is strictly necessary and the central prison administration is to decide on the pattern and manner of use of instruments of restraint.³⁹ Force may only be used on people in custody when it is strictly necessary for the maintenance of security and order within the institution, in cases of attempted escape, when there is resistance to a lawful order, or when personal safety is threatened. In any event, force may be used only if non-violent means have proved ineffective.⁴⁰

2.20 The CPT has stressed that 'a prisoner against whom means of force have been used should have the right to be immediately examined and, if necessary, treated by a doctor. In those rare cases where resort to instruments of physical restraint is required, the prisoner should be kept under constant and adequate supervision. Instruments of restraint should be removed at the earliest opportunity and they should never be applied or their application prolonged as a punishment. A record should be kept of every instance of the use of force against prisoners.'⁴¹

2.21 The Basic Principles on the Use of Force and Firearms by Law Enforcement Officials state that force may be used only if other means remain ineffective,⁴² care must be taken to minimise damage and injury and assistance and medical aid must provided at the earliest possible moment.⁴³ Firearms may only be used by law enforcement officers in defence against an imminent threat of death or serious injury, to prevent a crime involving grave threat to life, to arrest a person presenting such a danger or to prevent their escape, and only when less extreme means are insufficient. Intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.⁴⁴

2.22 The Basic Principles for the Treatment of Prisoners provide that states should undertake efforts to abolish solitary confinement as a punishment or to restrict its use.⁴⁵ The Standard Minimum Rules for the Treatment of Prisoners specify that 'corporal punishment, punishment by placing in a dark cell, and all cruel, inhuman or degrading punishments shall be completely prohibited as punishments for disciplinary offences.⁴⁶ The CPT has stressed that solitary confinement can have 'very harmful consequences for the person concerned' and that, in certain circumstances, solitary confinement can 'amount to inhuman and degrading treatment' and should, in all circumstances be applied for as short a period as possible.⁴⁷

Harding v Superintendent of Prisons & Anor, St Lucia, High Court, 31 July 2000, (2000) 3 CHRLD 128 (St Lucia)

H, who had been convicted of a firearms offence, was imprisoned in solitary confinement for an extended period in the maximum security wing also used to house death-row inmates. During his confinement he was continuously shackled for an initial period of 10 months and 15 days and thereafter whenever he visited the bathroom or met his legal adviser. He was also denied daily exercise, access to sunlight and visitation rights and suffered two asthmatic attacks as an alleged result of having to sleep on the wet floor of his cell for a period of two months. H alleged these actions violated St Lucia's constitutional prohibition of torture, inhuman and degrading punishment, and the Prison Rules which prohibit the use of mechanical restraints except under very limited circumstances. The respondents did not deny the allegations made in respect of the continuous use of mechanical restraints, but disputed that this had caused the severe injuries to his ankles and feet.

The Court noted the definition of torture, inhuman and degrading punishment or other treatment made by the European Court of Human Rights in Ireland v UK. The Court also stated that 'nowhere in the Prison Rules is it permitted to shackle a dangerous or potentially dangerous prisoner for an extended period. In these circumstances the use of shackles on H for 24 hours a day, including while he bathed, ate and slept, for such a prolonged period is a brutal and severe assault on his person and psyche amounting to both a clear breach of the Prison Rules and a form of torture...Further, confining H to a solitary cell for an extended period, without access to exercise and sunlight, constitutes unreasonable punishment and is inhumane and repugnant to the values and attitudes of any civilised society...Cellular confinement is not ordinarily permitted as a punishment under the Prison Rules and can only be authorised on a temporary basis by the Board of Visiting Justices, renewable monthly, for a valid reason such as security, discipline or the administration of justice. In the present case none of these conditions were fulfilled.'

Limits on interrogation

2.23 Article 11 of the Convention against Torture requires states to keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons under arrest, detention or imprisonment. The Human Rights Committee has stated that: 'keeping under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment is an effective means of preventing cases of torture and ill-treatment.'⁴⁸ The Committee has also stated that, 'the wording of Article 14(3)(g) -- i.e. that no one shall be compelled to testify against himself or to confess guilt -- must be understood in terms of the absence of any direct or indirect physical or psychological pressure from the investigating authorities on the accused, with a view to obtaining a confession of guilt. A fortiori, it is unacceptable to treat an accused person in a manner contrary to Article 7 of the Covenant in order to extract a confession.'⁴⁹

2.24 The CPT considers that clear rules or guidelines should exist on the manner in which interrogations are to be conducted. A detainee should be informed of the identity of all those present at the interview. There should also be clear rules covering the permissible length of the interview, rest periods and breaks, places in which interviews may take place, whether the detainee will be required to remain standing when questioned, and the questioning of persons under the influence of drugs and alcohol. It should also be required that a record be kept of the time at which interviews start and end, of requests made by detainees during interviews and of persons present during interviews.⁵⁰

2.25 The UN Guidelines on the Role of Prosecutors state that: 'When prosecutors come into possession of evidence against suspects that they know or believe on reasonable grounds was obtained through recourse to unlawful methods, which constitute a grave violation of the suspect's human rights, especially involving torture or cruel, inhuman or degrading treatment or punishment, or other abuses of human rights, they shall refuse to use such evidence against anyone other than those who used such methods, or inform the Court accordingly, and shall take all necessary steps to ensure that those responsible for using such methods are brought to justice.'⁵¹

2.26 The UN Body of Principles for the Protection of the All Persons under Any Form of Detention or Imprisonment state that no one should be compelled 'to confess, to incriminate himself otherwise or to testify against any other person ... No detained person while being interrogated shall be subject to violence, threats or methods of interrogation which impair his capacity of decision or his judgement.'⁵²

2.27 The UN Special Rapporteur on Torture has stated that: 'All interrogation sessions should be recorded and preferably video-recorded, and the identity of all persons present should be included in the records. Evidence from non-recorded interrogations should be excluded from court proceedings.'⁵³

Access to a lawyer and respect for the functions of a lawyer

2.28 The general right of those who have been arrested and detained to have access to legal advice is recognised in Article 14 of the ICCPR and a variety of other instruments relating to the right to a fair trial. The promptness of access to a lawyer is also most important from the point of view of preventing torture and ill-treatment. The Human Rights Committee has stressed that the protection of the detainee requires prompt and regular access be given to doctors and lawyers⁵⁴ and that 'all persons arrested must have immediate access to counsel' for the more general protection of their rights.⁵⁵ Counsel must communicate with the accused in conditions giving full respect for the confidentiality of their communications.⁵⁶ The authorities must also ensure that lawyers advise and represent their clients in accordance with professional standards, free from intimidation, hindrance, harassment, or improper interference from any quarter.⁵⁷

2.29 The European Court of Human Rights has expressed concern that the denial of access to legal advice during an extended detention may violate the right to a fair trial.⁵⁸ It has also specified that access to a lawyer is a 'basic safeguard against abuse' during periods of extended detention⁵⁹ and that the absence of such safeguards during an extended detention would leave a detainee 'completely at the mercy of those detaining him.'⁶⁰

2.30 The Inter-American Commission on Human Rights considers that in order to safeguard the rights not to be compelled to confess guilt and to freedom from torture, a person should be interrogated only in the presence of his or her lawyer and a judge.⁶¹ It has also concluded that the right to counsel applies on the first interrogation.⁶² The CPT considers that this is a right which must exist from the very outset of detention, that is from the first moment that a person is obliged to remain with the police, and that this includes 'in principle, the right for the person concerned to have the lawyer present during interrogation.'⁶³ Where access to a particular lawyer is prevented on security grounds, the CPT recommends that access to another independent lawyer who can be trusted not to compromise the interests of the criminal investigation should be arranged.⁶⁴

2.31 The Basic Principles on the Role of Lawyers states that 'all persons arrested or detained, with or without a criminal charge, shall have prompt access to a lawyer'⁶⁵ and that such persons 'shall be provided with adequate opportunities, time and facilities to be visited by and to communicate and consult with a lawyer, without delay, interception or censorship and in full confidentiality.'⁶⁶

2.32 The Principles further state that it is the responsibility of the state to ensure that lawyers '(a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.'⁶⁷ Where the security of lawyers is threatened as a result of discharging their functions, they shall be adequately safeguarded by the authorities.⁶⁸ Lawyers must not be identified with their clients or their clients' causes as a result of discharging their functions.⁶⁹

2.33 The UN Special Rapporteur on the Independence of Judges and Lawyers has recommended that 'it is desirable to have the presence of an attorney during police interrogation as an important safeguard to protect the rights of the accused. The absence of legal counsel gives rise to the potential for abuse.'⁷⁰ The Special Rapporteur on Torture has stated that: 'In exceptional circumstances, under which it is contended that prompt contact with a detainee's lawyer might raise genuine security concerns, and where restriction of such contact is judicially approved, it should at least be possible to allow a meeting with an independent lawyer, such as one recommended by a bar association.'⁷¹

Access to a doctor

2.34 The Human Rights Committee has stated that the protection of detainees requires that each person detained be afforded prompt and regular access to doctors.⁷²

2.35 The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment state that 'a proper medical examination shall be offered to a detained or imprisoned person as promptly as possible after his admission to the place of detention or imprisonment, and thereafter medical care and treatment shall be provided whenever necessary. This care and treatment shall be provided free of charge.'⁷³ Detainees have the right to request a second medical opinion by a doctor of their choice, and to have access to their medical records.⁷⁴ The UN Standard Minimum Rules for the Treatment of Prisoners state that detainees or prisoners needing special treatment must be transferred to specialised institutions or civil hospitals for that treatment.⁷⁵

2.36 The CPT has stressed that even if state-appointed doctors are available to treat detainees, in the interests of the prevention of ill-treatment, it is desirable that they should, in addition, have access to a doctor of their choice.⁷⁶

2.37 The UN Special Rapporteur on Torture has recommended that: 'At the time of arrest, a person should undergo a medical inspection, and medical inspections should be repeated regularly and should be compulsory upon transfer to another place of detention.'⁷⁷ He has further stated that: 'Governments and professional medical associations should take strict measures against medical personnel that play a role, direct or indirect, in torture. Such prohibition should extend to such practices as examining a detainee to determine his 'fitness for interrogation', procedures involving ill-treatment or torture, as well as providing medical treatment to ill-treated detainees so as to enable them to withstand further abuse.'⁷⁸

The right to challenge the lawfulness of detention

2.38 Article 9 (3) of the ICCPR states that: 'Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release.' The Human Rights Committee has stated that the right to challenge the legality of detention applies to all persons deprived of their liberty and not just to those suspected of committing a criminal offence.⁷⁹

2.39 This issue has been extensively considered by the Human Rights Committee, the European Court of Human Rights and the African Commission on Human and Peoples' Rights. These have established that the authority in question must be a formally constituted court or tribunal with the power to order the release of the detainee.⁸⁰ It must be impartial and independent from the body making the decision to detain the person and must also make its decision without delay.⁸¹

2.40 The right to challenge the lawfulness of detention, while primarily a safeguard against arbitrary deprivations of the right to liberty, is also a guarantee essential for the protection of other rights. The Inter-American Court of Human Rights has stated that while habeas corpus, or amparo, procedures are designed mainly to protect the derogable right to liberty, they are also an essential instrument for the protection of prisoners' non-derogable rights to life and to freedom from torture. The Court has therefore held that the right to the remedies of habeas corpus and amparo may never be suspended since they are among those judicial remedies that are essential for the protection of various rights whose derogation is prohibited.⁸²

2.41 The Inter-American Commission has stated that if a court is not officially informed of a detention, or is informed only after significant delay, the rights of a detainee are not protected. It has pointed out that such situations lend themselves to other types of abuses, erode respect for the courts and lead to the institutionalisation of lawlessness.⁸³ The African Commission has stated that denying detainees considered illegal aliens the opportunity to appeal to national courts violates the African Charter.⁸⁴ The European Court has stated that the review of the lawfulness of the detention must ensure that the detention is carried out according to procedures established by national law, and that the grounds for detention are authorised by national law.⁸⁵ The detention must comply with both the substantive and procedural rules of national legislation. Courts must also ensure that the detention is not arbitrary according to international standards.⁸⁶ Both the Human Rights Committee and the European Court of Human Rights have stated that prompt access to a court is an essential safeguard against torture and ill-treatment even during a state of emergency.⁸⁷

2.42 The CPT recommends that 'all persons detained by the police whom it is proposed to remand to prison should be physically brought before the judge who must decide that issue...Bringing the person before the judge will provide a timely opportunity for a criminal suspect who has been ill-treated to lodge a complaint. Further, even in the absence of an express complaint, the judge will be able to take action in good time if there are other indications of ill-treatment (e.g. visible injuries; a person's general appearance or demeanour).'⁸⁸

The State v Williams and Others, [1995] 2 LRC 103, South Africa Constitutional Court, 1995 (South Africa)

The applicants in this case were a group of six male juveniles who had been sentenced to receive a 'moderate correction' of a number of strokes with a light cane. The issue for the Court to consider was whether the sentence of juvenile whipping is consistent with the provisions of South Africa's Constitution.

The Court said that in imposing punishment, the state must do so in accordance with certain standards, which will reflect the values which underpin the Constitution. The courts have a role to play in the promotion and development of a new culture 'founded on the recognition of human rights'. One of the implications of the new order is that old rules and practices can no longer be taken for granted; they must be subjected to constant reassessment to bring them into line with the provisions of the Constitution.

It further stated that: 'No compelling interest has been proved which can justify the practice of juvenile whipping as a form of punishment. It has not been shown that there are no other punishments which are adequate to achieve the purposes for which it is imposed. Nor has it been shown to be a significantly effective deterrent. Its effect is likely to be coarsening and degrading rather than rehabilitative. It is moreover unnecessary. There are enough sentencing options in the South African justice system to conclude that whipping does not have to be resorted to. Juvenile whipping is, at this time so close to the dawn of the 21st century, cruel, it is inhuman and it is degrading.'

The Court reviewed international jurisprudence on the definition of what constituted 'cruel', 'inhuman' and 'degrading' when considering the legality of corporal punishment. It stated that: 'While our ultimate definition of these concepts must necessarily reflect our own experience and contemporary circumstances as the South African community, there is no disputing that valuable insights may be gained from the manner in which the concepts are dealt with in public international law as well as in foreign case law.' It noted that the UN Human Rights Committee has not considered it necessary to draw up a list of prohibited acts or to establish sharp distinctions between the different kinds of punishment or treatment and that the distinctions depend on the nature, purpose and severity of the treatment applied. It also stated that the European Court of Human Rights has distinguished the concepts primarily by the degree of suffering inflicted. The Court quoted the European Court's judgment in Tyrer v UK that: 'The very nature of judicial corporal punishment is that it involves one human being inflicting physical violence on another human being. Furthermore, it is institutionalised violence, that is in the present case violence permitted by the law, ordered by the judicial authorities of the State and carried out by the police authorities of the State...The institutionalised character of this violence is further compounded by the whole aura of official procedure attending the punishment and by the fact that those inflicting it were total strangers to the offender.'

The Court concluded that: 'It is regrettable, but undeniable, that since the middle 1980's our society has been subjected to an unprecedented wave of violence. Disputes, whether political, industrial or personal, often end in violent assaults. In addition, during the same period, there has been a marked increase in violent crimes, such as armed robbery and murder. The process of political negotiations which resulted in the Constitution was a rejection of violence. In this context, it cannot be doubted that the institutionalised use of violence by the State on juvenile offenders as authorised by section 294 of the Act is a cruel, inhuman and degrading punishment. The Government has a particular responsibility to sustain and promote the values of the Constitution. If it is not exacting in its acknowledgement of those values, the Constitution will be weakened. A culture of authority which legitimates the use of violence is inconsistent with the values for which the Constitution stands.'

Safeguards for special categories of detainees

2.43 All detained people have the right to equal treatment without discrimination on the grounds of race, colour, sex, sexual orientation, language, religion, political or other opinion, national or social origin, property, birth or other status. Particular allowances should, however, be made for the rights and needs of special categories of detainees including women, juveniles, elderly people, foreigners, ethnic minorities, people with different sexual orientation, people who are sick, people with mental health problems or learning disabilities, and other groups or individuals who may be particularly vulnerable during detention. Some groups may be targeted for discriminatory abuse by the staff of the institution where they are detained. They may also be vulnerable to abuse from other detainees.

Women in detention

2.44 The Human Rights Committee has expressed concern at the practice of allowing male prison officers access to women's detention centres, which has led to serious allegations of sexual abuse of women and the invasion of their privacy.⁸⁹ It has also stated that female staff should be present during the interrogation of female detainees and prisoners and should be solely responsible for conducting body searches.⁹⁰

2.45 The Standard Minimum Rules for the Treatment of Prisoners state that women in custody should be supervised by female members of staff.⁹¹ They should also either be held in separate institutions, or segregated within an institution, under the authority of female staff. No male staff should enter the part of the institution set apart for women unaccompanied by a female member of staff.⁹² In institutions where women are held in custody, facilities for pre-natal and post-natal care and treatment must be provided.⁹³ Whenever possible, arrangements should be made for children to be born in a hospital outside the institution.⁹⁴ The UN Special Rapporteur on Torture has recommended that states should provide gender-sensitive training for judicial and law enforcement officers and other public officials.⁹⁵

Juvenile detainees

2.46 Some specific obligations with respect to the use of pre-trial detention in cases involving children are found in the Convention on the Rights of the Child. The Convention applies to children up to the age of 18, who would normally be regarded as juveniles within most criminal justice systems. Article 37 emphasises that the detention of children -- pre-trial or any other form -- should be a measure of last resort and used for the shortest appropriate period of time. It requires due account to be taken of the needs of children who are deprived of their liberty and that they should be kept separately from adults unless it is considered in their best interest not to do so. Article 39 obliges states, inter alia, to promote physical and psychological recovery and social reintegration of a child victim of torture or any other form of cruel, inhuman or degrading treatment or punishment as well as any form of neglect, exploitation, or abuse.

2.47 The CPT has laid down some specific safeguards for protecting children against ill-treatment. It stresses 'that it is essential that all persons deprived of their liberty (including juveniles) enjoy, as from the moment when they are first obliged to remain with the police, the rights to notify a relative or another third party of the fact of their detention, the right of access to a lawyer and the right of access to a doctor. Over and above these safeguards, certain jurisdictions recognise that the inherent vulnerability of juveniles requires that additional precautions be taken. These include placing police officers under a formal obligation themselves to ensure that an appropriate person is notified of the fact that a juvenile has been detained (regardless of whether the juvenile requests that this be done). It may also be the case that police officers are not entitled to interview a juvenile unless such an appropriate person and/or a lawyer is present.'⁹⁶

People with mental health problems

2.48 The Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care state that: 'All persons with a mental illness, or who are being treated as such persons, shall be treated with humanity and respect for the inherent dignity of the human person.'⁹⁷ 'All persons with a mental illness, or who are being treated as such persons, have the right to protection from economic, sexual and other forms of exploitation, physical or other abuse and degrading treatment.'⁹⁸

2.49 The Standard Minimum Rules for the Treatment of Prisoners also state that people with mental health problems shall not be detained in prisons and 'shall be observed and treated in specialized institutions under medical management.'⁹⁹

2.50 The CPT has stated that: 'A mentally ill prisoner should be kept and cared for in a hospital facility which is adequately equipped and possesses appropriately trained staff. That facility should be a civil mental hospital or a specially equipped psychiatric facility within the prison system.'¹⁰⁰ A mentally disturbed violent prisoner should be treated through close supervision and nursing support. While sedatives may be used, if considered appropriate, instruments of physical restraint should only be used rarely and must either expressly be authorised by a medical doctor or be immediately brought to the attention of a doctor. These should be removed at the earliest opportunity and should never be used as a means of punishment. All uses of physical restraint should be recorded in writing.¹⁰¹

D K Basu v State of West Bengal; Ashok K Johri v State of Uttar Pradesh, India, Supreme Court, 18 December 1996, (1997) 1 SCC 416, AIR 1997 SC 610; (1996) 2 CHRLD 86 (India)

This case arose from a complaint brought by a registered non-political organisation to the Chief Justice of India. The Court held that, despite the existence of constitutional and procedural protections to safeguard individuals' rights, instances have come to its notice where these have been routinely ignored. The Court also noted that the prosecution of offences of torture and custodial death was hampered by an exaggerated adherence to, and insistence upon, establishing proof beyond every reasonable doubt. It stated that this ignores the reality, and the peculiar circumstances of a given case and often results in a miscarriage of justice. It drew Parliament's attention to the urgent need to amend the rules of evidence regarding prosecution of police officials accused of custodial violence, in particular the recommendations of the Law Commission of India in its 113^th Report regarding a shift in the burden of proof, with the introduction of a presumption of custodial violence if there is evidence that the detainee's injury was caused during the period of detention, and the consideration by the court of all relevant circumstances.

The Court stated that in addition to the statutory and constitutional requirements referred to above, it would be useful and effective to structure appropriate machinery for contemporaneous recording and notification of all cases of arrest and detention to bring in transparency and accountability. As preventive measures, it stated that the following requirements are to be followed in all cases of arrest or detention until legal provisions are enacted:

(i) police personnel carrying out arrest and interrogation should wear accurate, visible and clear identification and name tags with their designations, the details of which should be recorded in a register;

(ii) a memo of arrest (including the relevant date and time) shall be prepared by the arresting police officer and shall be attested by at least one witness (either a relative of the arrestee or a respectable local person) and countersigned by the arrestee;

(iii) one friend or relative of the arrestee (or another person known to him or her who has an interest in his or her welfare) shall be informed, as soon as practicable, of the arrest and detention at the place in question;

(iv) where the next friend or relative of the arrestee lives outside the district or town in question, he or she must be notified by the police of the time, place of arrest and venue of custody within 8 to 12 hours of the arrest;

(v) the arrestee must be informed of this right as soon as he or she is arrested or detained;

(vi) an entry must be made in the diary at the place of detention regarding the arrest of the person, including the name of the next friend who has been informed and the names and particulars of the police officers in whose custody the arrestee is detained;

(vii) on request, the arrestee should be examined for injuries at the time of arrest and provided with a copy of the resulting report, signed by both the officer and arrestee;

(viii) the arrestee should undergo a medical examination every 48 hours by a doctor from an approved panel;

(ix) copies of all documents regarding the arrest are to be sent to the appropriate local Magistrate for his or her records;

(x) the arrestee may be permitted to meet with his or her lawyer during interrogation, though not throughout the interrogation;

(xi) a police control room must be established at all district and State headquarters where information regarding the arrest should be received within 12 hours of the arrest and displayed on a conspicuous noticeboard.

(xii) These requirements are in addition to existing safeguards and do not detract from other directions given by the courts on this matter. They will apply with equal force to the other governmental agencies which have the power to detain and interrogate individuals. They need to be followed strictly; failure to comply shall render the official concerned liable for departmental action and contempt of court proceedings.

The Court also held that where an infringement of fundamental rights is established, the Court cannot merely issue a declaration to that effect; it must proceed further and award compensatory relief, not by way of damages as in a civil action, but by way of compensation under the public law jurisdiction for the wrong done due to a breach of public duty by the State for not protecting the fundamental right to life of the citizen. Mere punishment of the offender cannot give much solace to the family of the victim and a civil action for damages is a long drawn out and cumbersome judicial process. Monetary compensation for redressing the infringement of the indefeasible right to life of the citizen is, therefore, useful and at times perhaps the only effective remedy for the family members of the deceased victim, who may have been the breadwinner of the family. The State's vicarious liability for the acts of public servants in infringing such rights is now well-accepted in most jurisdictions.

In the assessment of compensation, the emphasis has to be on the compensatory rather than the punitive element. Awarding appropriate punishment for the offence (irrespective of compensation) must be left to the criminal courts in which the offender is prosecuted, which the state, in law, is duty bound to do. The award of compensation in the public law jurisdiction is also without prejudice to any other action, such as a civil suit for damages, which is lawfully available to the victim (or the heirs of the deceased victim) with respect to the same subject matter for the tortuous act committed by state functionaries. The quantum of compensation will depend upon the peculiar facts of each case and no rigid formula can be evolved. The amount of compensation awarded by the court (and paid by the State) to redress the wrong done may, in a given case, be adjusted against any amount which may be awarded to the claimant by way of damages in a civil claim.

Combating Torture

A Manual for Judges and Prosecutors

By Conor Foley

Safeguards against torture for those deprived of their liberty

Notes:

Notifying people of their rights

Notes:

Use of officially recognised places of detention and the maintenance of effective custody records

Notes:

Avoiding incommunicado detention

Notes:

Humane conditions of detention

Notes:

Harding v Superintendent of Prisons & Anor, St Lucia, High Court, 31 July 2000, (2000) 3 CHRLD 128 (St Lucia)

Limits on interrogation

Notes:

Access to a lawyer and respect for the functions of a lawyer

Notes:

Access to a doctor

Notes:

The right to challenge the lawfulness of detention

Notes:

The State v Williams and Others, [1995] 2 LRC 103, South Africa Constitutional Court, 1995 (South Africa)

Safeguards for special categories of detainees

Women in detention

Juvenile detainees

People with mental health problems

Notes:

D K Basu v State of West Bengal; Ashok K Johri v State of Uttar Pradesh, India, Supreme Court, 18 December 1996, (1997) 1 SCC 416, AIR 1997 SC 610; (1996) 2 CHRLD 86 (India)