Reporting Killings as Human Rights Violations Handbook

Combating Torture

A Manual for Judges and Prosecutors

By Conor Foley

Manual links: website home page
Table of Contents - Search - Introduction - 1: The Prohibition of Torture in International Law - 2: Safeguards Against Torture - 3: The Role of Judges and Prosecutors - 4: Conducting Investigations and Inquiries - 5: Prosecuting Suspected Torturers and Providing Redress - Appendices
3 The role of judges and prosecutors in protecting detainees and criminal suspects from torture: section links...
The role of judges and prosecutors in protecting detainees and criminal suspects from torture - The role of judges - The role of prosecutors - Safeguards during detention - Interrogations - Independent inspections - Conditions of detention - Appearance before a judicial authority - Legal assistance - Admissibility of evidence - Examining witnesses - Duty to protect in cases of expulsion

The role of judges and prosecutors in protecting detainees and criminal suspects from torture

3.1 International human rights law requires states to keep 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, as an effective means of preventing cases of torture and ill-treatment.1 States are also required to investigate complaints of ill-treatment of detainees and establish independent mechanisms to monitor detainees.2

3.2 This chapter focuses on the role of judges and prosecutors in protecting those deprived of their liberty from acts of torture or other forms of ill-treatment. In particular, it considers how the safeguards set out in chapter two should be applied. It provides practical advice for how judges and prosecutors can satisfy themselves that detainees brought before them have not been subject to torture or other prohibited forms of ill-treatment. It also highlights the obligation on prosecutors to ensure that evidence gathered in the course of a criminal investigation has been properly obtained and that the fundamental right of the criminal suspect not to be tortured or ill-treated has not been violated in the process. The risk of such treatment is all the greater if the legal system bases convictions mainly or substantially on confessions and on evidence obtained in pre-trial detention.

3.3 Judges and prosecutors exercise different functions in different legal systems and their role in (a) deciding on the admissibility of evidence, (b) questioning witnesses and (c) summing up cases will also vary. The discretion that judges and prosecutors will enjoy in carrying out their functions will partly depend on what legal system they are operating under. For example, in civil or common law systems, criminal justice may follow respectively either inquisitorial or adversarial models. Trials may also be conducted in different ways depending on whether they take place in front of a jury or judges sitting on their own. The following principles will need to be interpreted within the framework of the specific criminal justice system of different countries.


Notes:

1 Human Rights Committee General Comment 20, para. 11. [...back to main text]

2 Concluding Observations of the Human Rights Committee: France, UN Doc.CCPR/C/79/Add.80, 4 August 1997, para.16. [...back to main text]

 

The role of judges

3.4 The basic role of judges is to uphold national law -- including international law when this has been incorporated into domestic legislation -- and to preside independently and impartially over the administration of justice. In deciding guilt or innocence, or in weighing the merits of claims between individuals and the state, judges must have reference only to the facts, so far as they can be established; the merits of each party's position; and the relevant law. But justice also requires that judges understand all the factors relevant to the situation they are considering, including those which may affect the way that those present in the courtroom behave, or perceive the trial process. This does not just involve controlling procedures, making rulings on points of law, summing up cases, giving judgments, or passing sentences, but also ensuring that their court proceedings are managed in a way that is fair and is seen to be fair.

3.5 It is the responsibility of judges to ensure that defendants, witnesses and victims are treated fairly and that those accused of having committed a criminal offence receive a fair trial. This involves ensuring that their rights are respected at all times, and that only evidence which has been properly obtained should be admissible in court. It also means ensuring that those responsible for upholding the law are themselves bound by its strictures. This may involve taking an assertive role to ensure that all testimony and evidence has been given freely and has not been obtained using coercive means. Judges should at all times be alert to the possibility that defendants and witnesses may have been subject to torture or other ill-treatment. If, for example, a detainee alleges that he or she has been ill-treated when brought before a judge at the end of a period of police custody, it is incumbent upon the judge to record the the allegation in writing, immediately order a forensic medical examination and take all necessary steps to ensure the allegation is fully investigated.3 This should also be done in the absence of an express complaint or allegation if the person concerned bears visible signs of physical or mental ill-treatment.

3.6 While legal systems vary in some respects in different parts of the world, the legal prohibition of torture is universal. The primary role of judges in preventing acts of torture, therefore, is to ensure that the law is upheld at all times.


Notes:

3 CPT/Inf/E (2002) 1, p. 14, para 45. [...back to main text]

 

The role of prosecutors

3.7 Judges and prosecutors can play significantly different roles in different criminal justice systems -- depending on whether these are based on an adversarial or inquisitorial process. Many of the points regarding the role and responsibilities of judges will also apply to prosecutors in many countries.

3.8 Prosecutors also have a particular responsibility to ensure that all evidence gathered in the course of a criminal investigation has been properly obtained and that the fundamental rights of the criminal suspect have not been violated in the process. When prosecutors come into possession of evidence against suspects that they know, or believe on reasonable grounds, was obtained through recourse to unlawful methods, notably torture, they should reject such evidence, inform the court accordingly, and take all necessary steps to ensure that those responsible are brought to justice.4 Any evidence obtained through the use of torture or similar ill-treatment can only be used as evidence against the perpetrators of these abuses.5

3.9 In some jurisdictions it is necessary for prosecutors to request investigating judges to act before the latter can initiate investigations. It is, therefore, essential that prosecutors take this duty seriously when it involves the possible commission of the crime of torture by law enforcement officials. Almost all jurisdictions oblige prosecutors to pursue the perpetrators of criminal offences and this duty includes the pursuit of law enforcement officials who may be accused of criminal offences, such as committing acts of torture. In many jurisdictions there is no need for prosecutors to receive a formal complaint before they can act to pursue evidence of a crime. Indeed they frequently have a legal duty to take such action if information comes to their attention in any way.


Notes:

4 UN Guidelines on the Role of Prosecutors, Guideline 16. [...back to main text]

5 The UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 15. [...back to main text]

Safeguards during detention

3.10 Prosecutors and judges should ensure respect for the elements contained in the following check-list of standards set out in the previous chapter. This check-list is based on the safeguards in international law. However, international standards only provide a basic minimum. Many states offer greater protection and these can also be considered as models of good practice. Where these standards have not been adhered to there is a particular risk that detainees may have been subject to torture or other forms of ill-treatment. Failure to adhere to some of these standards may also subsequently make it more difficult to identify and prosecute those responsible for these acts:

Interrogations

3.11 Prosecutors have a responsibility to ensure that they do not participate in interrogations in which coercive methods are used to extract confessions or information. They should also satisfy themselves that such methods are not used by law enforcement officials in order to obtain evidence to bring criminal charges against a suspect. Where a suspect or witness is brought before a prosecutor, the prosecutor should ensure that any information or confession offered is being given freely. The prosecutor should also explore for signs of physical or mental distress, take all allegations of torture or other forms of ill-treatment seriously, and refuse to return anyone to custody where he or she is at risk of such treatment.

3.12 The risk of torture and ill-treatment under interrogation is all the greater if the legal system bases convictions mainly or substantially on confessions and on evidence obtained in pre-trial detention -- particularly when interrogations are conducted without a detainee's lawyer being present. In all circumstances, strict procedures should be followed to ensure that interrogations are properly conducted and that abuses are not inflicted while a detainee is being questioned. It is particularly important that the details of all interrogations are recorded and the interrogation itself is transcribed. This information should also be available for the purposes of judicial or administrative proceedings.

3.13 Prosecutors and judges should ensure respect for the elements contained within the following check-list of good practice concerning interrogations, which is based on recommendations by the CPT and the UN Special Rapporteur on Torture:6

3.14 The electronic recording of interviews significantly helps reduce the risk of torture and ill-treatment and can be used by the authorities as a defence against false allegations. As a precaution against tampering with the recordings, one tape should be sealed in the presence of the detainee and another used as a working copy. Adherence to such procedures also helps to ensure that a country's constitutional and legislative prohibition of torture and ill-treatment is respected and verifiable.

3.15 The term 'interrogation' does not only refer to the time in which a person is being formally questioned. It may include periods before, during and after the questioning when physical and psychological pressures are applied to individuals to disorient them and coerce them into compliance during formal questioning. All such practices must be absolutely prohibited.


Notes:

6 CPT/Inf/E (2002) 1, p.10-16, para 33-50; Report of the Special Rapporteur on Torture, 2001, UN Doc.A/56/156, July 2001, para 39. [...back to main text]

 

Independent inspections

3.16 Regular inspection of places of detention, especially when carried out as part of a system of periodic visits, constitute one of the most effective preventive measures against torture. The CPT has stated that it 'attaches particular importance to regular visits to each prison establishment by an independent body (e.g. a board of visitors or supervisory judge), possessing powers to hear (and if necessary, take action on) complaints from prisoners and to inspect the establishment's premises. Such bodies can inter alia play an important role in bridging differences that arise between prison management and a given prisoner or prisoners in general.'7 It has also welcomed the existence of mechanisms to inspect police premises as 'making an important contribution towards the prevention of ill-treatment of persons held by the police and, more generally, of ensuring satisfactory conditions of detention in police stations'.8 The Special Rapporteur on Torture has stated that 'unannounced visits to police stations, pre-trial detention facilities and penitentiaries' provide one effective safeguard against torture.9

3.17 National law often requires members of the judiciary and/or prosecutors to carry out inspections. Law enforcement officials, defence lawyers and physicians, as well as independent experts and other representatives of civil society may also be involved in inspections. Ombudsmen and national or human rights institutions, the International Committee of the Red Cross (ICRC) and independent non-governmental organisations (NGOs) should also be authorised to have full access to all places of detention on request.

3.18 Places of detention should be visited regularly -- and without prior warning -- and every effort must be made to communicate directly and confidentially with people being detained or imprisoned. Places to be visited include police lock-ups, pre-trial detention centres, security service premises, administrative detention areas and prisons. Inspection teams should be free to report publicly on their findings should they choose to do so.

3.19 The Association for the Prevention of Torture (APT), which is a non-governmental organisation, has produced a report, based on a number of CPT reports and recommendations, concerning national visiting mechanisms. This contains the following basic check-list for judges and prosecutors conducting inspections.10

3.20 As well as talking to detainees and observing their physical condition, overall demeanour and their relationship with the staff in the detention facility, members of the visiting body should also be observant for any equipment or implements that could be used to inflict torture or ill-treatment. The staff of the detention facility should always be questioned about any such items and detainees should also be questioned, separately from the staff.


Notes:

7 2nd General Report on the CPT's Activities, 1991, para 54. [...back to main text]

8 CPT/Inf/E (99) 1 (REV. 2), para 97. [...back to main text]

9 Report of the Special Rapporteur on Torture, 2001, UN Doc.A/56/156, para 39(c). [...back to main text]

10 CPT Recommendations Concerning National Visiting Mechanisms, The Association for the Prevention of Torture, June 2000. [...back to main text]

 

Conditions of detention

3.21 While conditions of detention will vary, the CPT has provided a general check-list11 of factors that need to be considered when assessing the suitability of a place used for short-term detention:

These are to be regarded as minimum standards. Any further period in detention should normally be in a facility designed for longer-term detentions where the standards to be expected are more exacting. Deprivation of liberty in conditions which do not meet these standards can amount to inhuman or degrading treatment in contravention of international human rights law.12


Notes:

11 CPT/Inf/E (2002) 1, p.8, para 42. [...back to main text]

12 Peers v Greece, ECtHR, Judgment 19 April 2001; Kalashnikov v Russia, ECtHR, Judgment 15 July 2002. [...back to main text]

 

Blanchard & Others v Minister of Justice, Legal and Parliamentary Affairs & Anor, Supreme Court, Zimbabwe, 9 July 1999, 1999 (10) BCLR 1169 (ZS), [2000] 1 LRC 671; (1999) 2 CHLRD 326 (Zimbabwe)

The applicants had been charged with several serious offences, including terrorism and sabotage, and were detained in a high-security prison pending trial. They filed an application to the Supreme Court alleging that the respondents had violated their constitutional right not to be subject to torture or inhuman or degrading treatment by detaining them in continuously lit, single, locked cells; forcing them to wear prison clothing; stripping and shackling them in leg-irons each night, and preventing them from receiving food from sources outside the prison.

In July 1999 the Supreme Court of Zimbabwe made a declaratory order that the applicants' cells should be left unlocked in the day, that the light in their cells should be switched off at night time, and that while they remained unconvicted prisoners, the applicants should be allowed to wear their own clothing and were entitled to receive food from outside the prison.

The Court considered international jurisprudence including the European Court of Human Rights cases of Ireland v UK and Koskinen v Finland and specifically refered to the UN Standard Minimum Rules for the Treatment of Prisoners. It condemned the use by prison authorities of leg-irons and handcuffs, except for the prevention of escape during transportation or to restrain violent behaviour in the absence of other effective methods. It stated that although persons in custody do not possess the full range of freedoms of unincarcerated individuals, any restraints imposed upon them must be circumscribed and absolutely necessary. They must be measured against the State's sole objective of bringing the prisoner to trial, and be judged against a standard of basic humanity towards persons innocent in the eyes of the law rather than against abstract penological standards. Punishment, deterrence or retribution are not compatible with the presumption of innocence. Although there may be special circumstances in which it is permissible to subject a prisoner awaiting trial to more severe treatment than other such prisoners, the onus is on the prison authorities to justify such action. In the present case, the respondents had not alleged that the applicants' conduct posed a threat to prison security. Stripping the applicants and shackling them in leg irons is, therefore, manifestly inhuman. Insisting on continuous lighting was irrational and aimed to exacerbate the effect of the confinement by making it as uncomfortable and severe as possible, particularly as the applicants were, in effect, being held in solitary confinement.

The Court also stated that Zimbabwe's Constitution aims to protect both the dignity and the physical and mental integrity of the individual and this protection is similar to the provisions of the European Convention on Human Rights and the International Covenant on Civil and Political Rights. The prolonged duration of the ill-treatment endured by the applicants, and its physical and mental effects upon them, had attained the minimum level of severity necessary to constitute a violation of this right. It also commented that the constitutional prohibition on torture and other ill-treatment was intended to protect persons from acts causing not only physical but also mental suffering. The respondents were ordered to pay costs on the higher scale as a mark of the Court's disapproval of the arbitrary harshness of the treatment meted out to the applicants.

Appearance before a judicial authority

3.22 All detained persons have the right to challenge the lawfulness of the detention. This is sometimes referred to as a habeas corpus procedure, which means the delivering of the body before the court. This can provide an important safeguard against torture as well as a means to challenge arbitrary detentions -- although sometimes judges restrict this procedure to ensuring that the detention itself is lawful without giving sufficient weight as to whether the conditions of the detention also fully comply with the law.

3.23 The application to challenge a detention may be made by the detainee or by someone acting on his or her behalf. Such procedures must be acted on expeditiously. If it is within their discretion to do so, judges should also require that the detainee is physically brought to court and that, while in court the detainee is able to communicate with his or her lawyer in confidence.

3.24 Whenever a detainee is brought before them from custody, judges should be particularly attentive to his or her condition. Where necessary, judges should routinely carry out a visual inspection for any signs of physical injury -- or order one to be carried out by a doctor. This could involve a check for physical bruising that may be hidden under clothing. Many forms of torture leave no visible marks and others are inflicted using methods that are difficult to detect. Judges should, therefore, also be alert to other clues, such as the individual's physical and mental condition and overall demeanour, the behaviour of the police and guards involved in the case and the detainee's attitude towards them. Judges should actively seek to demonstrate that they will take allegations of torture or ill-treatment seriously and will take action where necessary to protect those at risk.

3.25 Where a suspect does not speak the language in which the trial is being conducted, the requirements of a fair trial dictate that he or she must be provided with full interpretation facilities.13 This is also an important safeguard to ensure that all acts of torture and other forms of ill-treatment are reported.

3.26 Those responsible for the security of courts and for guarding detainees during court appearances should always be organisationally separate from, and independent of, those guarding detainees in custody and those conducting investigations into the crime that the detainee is suspected of committing. Remand prisoners are at particular risk if they are being held by, or can be transferred back into, the custody of, the investigating authorities. While in court the detainee should be held in a place that is physically separate from where the police or investigating officers involved in the case are waiting. If there are any suspicions that an individual has been subjected to torture, or other forms of ill-treatment, that individual must be removed from the custody of his or her alleged torturers immediately.

3.27 In order to be alert to signs of torture or ill-treatment, judges need to give some consideration to the physical lay-out of their courtrooms.


Notes:

13 Article 14 (3)(f) International Covenant on Civil and Political Rights. [...back to main text]

 

Legal assistance

3.28 Judges should ensure that all defendants are aware of their right to call upon the assistance of a lawyer of their choice. Defence lawyers should be able to perform their professional functions without intimidation, hindrance, harassment or improper interference, including the right to consult with their clients freely.14 They should not be identified with their clients or their clients' causes as a result of discharging their functions. Nor should they suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with their professional duties, standards and ethics. Where the security of lawyers is threatened as a result of discharging their functions, they should be adequately safeguarded and protected by the authorities.15


Notes:

14 Human Rights Committee, General Comment 13, Article 14 (Twenty-first session, 1984), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI\GEN\1\Rev.1 at 14 (1994), para. 9; Basic Principles on the Role of Lawyers, principles 16-18. [...back to main text]

15 Ibid. [...back to main text]

 

Admissibility of evidence

3.29 In many jurisdictions, judges play a crucial role in deciding what evidence should be heard in the main trial, or before a jury, and what evidence should be deemed inadmissible. Clearly evidence obtained through torture or other forms of ill-treatment must be deemed inadmissible.16 This will usually be specified in the national law -- although some forms of physical and mental ill-treatment are not always adequately covered in national legislation. Unless the written law admits no other interpretation, judges should always interpret it in ways that are consistent with international standards and best-practices regarding torture and other forms of ill-treatment.

3.30 It is the duty of the court to ensure that evidence produced is admissible. It is, therefore, incumbent on the judge to satisfy herself/himself that any confession or other evidence has not been obtained through torture or other forms of ill-treatment. Even if no complaint is made by the accused, the judge must be prepared to ask the prosecution to prove beyond reasonable doubt that the confession was obtained voluntarily.

3.31 Evidence may be deemed admissible in a trial even though there is an allegation that it was obtained through coercive means -- as not all such claims will necessarily be accepted as genuine. In some cases, judges may hold a separate hearing -- or a 'trial within a trial' -- into such claims before deciding whether this evidence can be presented before the main court. Where a trial is conducted with a jury, it may be excluded from this part of the proceedings. However, there may also be cases where evidence is heard in the main trial which the defence alleges was obtained through torture or other prohibited forms of ill-treatment. In any case where such an allegation has been made, judges have a particular responsibility to ensure that witnesses are properly examined about the allegation and that sufficient weight is given to this during their deliberations and when summing up the case.


Notes:

16 Kelly v Jamaica, (253/1987), 8 April 1991, Report of the Human Rights Committee, (A/46/40), 1991; Conteris v Uruguay, (139/1983), 17 July 1985, 2 Sel. Dec. 168; Estrella v Uruguay, (74/1980), 29 March 1983, 2 Sel. Dec. 93. [...back to main text]

 

Examining witnesses

3.32 Particular attention should be paid to any witness who appears to have suffered or witnessed physical injuries or mental trauma while in custody. Such injuries or trauma may not necessarily be the result of torture or other forms of ill-treatment and not all claims of such ill-treatment can be taken at face value. Nevertheless, appropriate allowance should be made for the fact that a witness testifying about such acts may be particularly vulnerable, frightened or disorientated. Care should be taken to ensure that the witness is not re-traumatised during questioning and that the quality of his or her evidence suffers as little as possible because of any particular vulnerabilities. Allowance should also be made for the fact that the witness may be suffering from post-traumatic stress, or from a mental disability unrelated to the alleged ill-treatment, and that this may affect his or her memory, communication skills, and responses to perceived aggression during questioning.

3.33 The following practices should be adhered to during questioning and the reasons for this explained to the court, where necessary:

3.34 Judges and prosecutors should also be aware that physical and mental torture and other forms of ill-treatment may have been carried out within a particular social, cultural or political specificity that the witness might find difficult to explain to the court. An action that might seem trivial or harmless in one context could be deeply demeaning or traumatic in another. A comment that might seem completely innocuous when repeated could easily have been understood -- and have been intended to be -- a dangerous implied threat when it was first made. This might be because of certain cultural sensitivities or taboos, such as 'honour' and 'shame'. It might also be because certain social and political groups believe that the police routinely behave in ways that others might find it very difficult to comprehend. For example, coded threats may have been made against a witness, or a member of his or her family, by the police which the witness has difficulty in explaining to the court. The judge should actively draw out such nuances if the lawyers have failed to do so during their own questioning of witnesses.

3.35 In many jurisdictions, where a prosecution witness is of doubtful character, there is a duty to disclose this to the defence. In some countries, law enforcement services or agencies may be required to disclose the criminal or disciplinary records of individual officers so that the defence may cross-examine them where their credibility is an issue. Where it is within their discretion to do so, judges should ensure that the previous disciplinary or criminal offences on the record of a law enforcement officer appearing as a prosecution witness, is disclosed to the defence. This will be particularly important in any case where there is an allegation of torture or ill-treatment if the officer has previously been disciplined of convicted of such behaviour. It can also act as a disincentive to individual officers to engage in such practices as their value as prosecution witnesses in subsequent cases will be undermined.

3.36 When a judge sums up, concludes a trial or delivers his or her reasoning it is important to ensure that adequate weight has been given to allegations of torture and ill-treatment and to the testimony of those who allege that it has taken place. Where the trial is being held before a jury, it should be carefully explained why all forms of torture and ill-treatment are prohibited, irrespective of the nature of the person alleging that they have been subjected to this, or any crime that he or she may be suspected of committing. This will be particularly important in cases where the person making the allegation is of a different race, sex, sexual orientation, or nationality, has a different political or religious belief, or comes from a different social, cultural or ethnic background from the majority of the jurors. It will also be important if the person making the allegation is accused of a particularly serious or obnoxious crime.

3.37 In societies where a particular social group is generally perceived negatively, or where members of this group are identified with particular types of crime, juries must be discouraged from following their prejudices that lead them to conclude that the victim 'deserved' the torture or ill-treatment that he or she is alleged to have suffered. Equally where other evidence in the trial points to the guilt of a particular defendant, juries must be dissuaded from regarding allegations of torture or other forms of ill-treatment in a less serious light -- or concluding that the police were merely trying to 'improve' their case. In providing direction as to the law to jurors, judges must always point out the total unacceptability of torture and other forms of ill-treatment under all circumstances.

3.38 Judges should, however, also instruct the jury to give due weight to 'cultural' factors when applying their 'common sense' to such allegations. While not applying prejudicial stereotypes to particular groups -- or instinctively finding the evidence of some more credible than that of others -- jurors should be guided towards attempting to understand the impact that various forms of physical and mental ill-treatment might have on a victim from a different background to their own.

Duty to protect in cases of expulsion

3.39 Judges may also, on occasion, be required to make decisions regarding the sending or return of an individual to a situation where he or she faces a real risk of being tortured. This might arise, for example, because of an extradition request or a challenge to a decision regarding an impending deportation.

3.40 The right of a person not to be sent to a country where there are substantial grounds for believing that he or she would face a real risk of being subject to treatment that amounts to torture or cruel, inhuman or degrading treatment or punishment is also well established in human rights law. This right applies to all people and at all times. This right is recognised as forming a part of the right to be protected against acts of torture and other prohibited forms of ill-treatment contained in the International Covenant on Civil and Political Rights 1966, the European Convention on Human Rights 1950, the American Convention on Human Rights 1978, the African Charter on Human and People's Rights 1981, the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 and the European Convention for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment 1987.

3.41 Both the Human Rights Committee and the European Court have stated that exposing someone to a 'real risk' of suffering inhuman or degrading treatment would violate their right to protection against such acts.17 The Human Rights Committee has stated that 'States Parties must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement.'18 The European Court has stated that the absolute prohibition of torture and other forms of ill-treatment applies irrespective of the victim's conduct and cannot be overridden by a state's national interest or in dealing with suspected terrorists.19 Even if the threat emanates from private groups, such as armed insurgents or criminals, if the state concerned is unable or unwilling to protect the individual from such treatment this would amount to a violation.20 In exceptional circumstances, the European Court has also found that the lack of adequate medical facilities in the country to which someone is threatened with return could amount to a violation of Article 3.21 The Committee against Torture has also requested states party to the Convention not to expel someone who can show a 'real and personal risk' of being exposed to such treatment.22 The Committee has stressed that this protection is absolute, 'irrespective of whether the individual concerned has committed crimes and the seriousness of these crimes.'23

3.42 The Convention Relating to the Status of Refugees 1951 and the 1967 Protocol, make specific provision for refugees and these principles should also be upheld by domestic courts. The most essential component of refugee status and of asylum is protection against return to a country where a person has reason to fear persecution. This protection has found expression in the principle of non-refoulement -- the right of a person not to be returned to a country where his or her life or freedom would be threatened -- which is widely accepted by states. The principle of non-refoulement has been set out in a number of international instruments relating to refugees, both at the universal and regional levels.

3.43 The Convention Relating to the Status of Refugees provides, in Article 33(1), that: 'No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.' The principle of non-refoulement constitutes one of the basic Articles of the 1951 Convention. It is also an obligation under the 1967 Protocol to this Convention. Unlike various other provisions in the Convention, its application is not dependent on the lawful residence of a refugee in the territory of a contracting state. The principle also applies irrespective of whether or not the person concerned has been formally recognised as a refugee -- if this status has yet to be determined. Because of its wide acceptance at universal level, it is being increasingly considered as a principle of general or customary international law, and even jus cogens, and so is binding on all states. Therefore no government should expel a person in these circumstances.


Notes:

17 Soering v UK, 1989, ECtHR, Series A, No. 161. See also Cruz Varas v Sweden, 1991, ECtHR Series A no.201, Vilvarajah v UK, 1991, ECtHR Series A, No. 215, H.L.R. v France, 1997, EtCHR Series A, D v UK, 1997, Judgment 2 May, Jabari v UK, 2000, Judgment 11 November. UN Human Rights Committee decision on the communication Ng v Canada, (469/1991), Report of the Human Rights Committee, Vol II, GAOR, 49th Session, Supplement No. 40 (1994), Annex IX CC; and Human Rights Committee, General Comment 2, Reporting guidelines (Thirteenth session, 1981), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI\GEN\1\Rev.1 at 3 (1994) para 3. [...back to main text]

18 Human Rights Committee, General Comment 20, para 9. [...back to main text]

19 Chahal v UK, ECtHR, 1996, Judgment 15 November. [...back to main text]

20 Ahmed v Austria, ECtHR, Judgment 17 December 1996; H.L.R. v France, ECtHR, Judgment 29 April 1997. [...back to main text]

21 D. v UK, ECtHR, Judgment 2 May 1997. [...back to main text]

22 See for example: The Reports of the Committee Against Torture, Mutambo v Switzerland, (13/1993) GAOR, 49th Session Supplement No.44 (1994) Khan v Canada, (15/1994), GAOR, 50th Session, Supplement No.44 (1995). [...back to main text]

23 Ibid. [...back to main text]

 

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3 The role of judges and prosecutors in protecting detainees and criminal suspects from torture: section links...
The role of judges and prosecutors in protecting detainees and criminal suspects from torture - The role of judges - The role of prosecutors - Safeguards during detention - Interrogations - Independent inspections - Conditions of detention - Appearance before a judicial authority - Legal assistance - Admissibility of evidence - Examining witnesses - Duty to protect in cases of expulsion
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Table of Contents - Search - Introduction - 1: The Prohibition of Torture in International Law - 2: Safeguards Against Torture - 3: The Role of Judges and Prosecutors - 4: Conducting Investigations and Inquiries - 5: Prosecuting Suspected Torturers and Providing Redress - Appendices
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