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Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Legal status
- Non-negotiated soft law
- Document type
- Special Procedures' report
- Year
- 2013
- Document code
- A/HRC/22/53
Document
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 1
- Paragraph text
- The preceding examples of torture and ill-treatment in health-care settings likely represent a small fraction of this global problem. Such interventions always amount at least to inhuman and degrading treatment, often they arguably meet the criteria for torture, and they are always prohibited by international law.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Health
- Person(s) affected
- N.A.
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 2
- Paragraph text
- The prohibition of torture is one of the few absolute and non-derogable human rights, a matter of jus cogens, a peremptory norm of customary international law. Examining abuses in health-care settings from a torture protection framework provides the opportunity to solidify an understanding of these violations and to highlight the positive obligations that States have to prevent, prosecute and redress such violations.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Health
- Person(s) affected
- N.A.
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 3
- Paragraph text
- The right to an adequate standard of health care ("right to health") determines the States' obligations towards persons suffering from illness. In turn, the absolute and non-derogable nature of the right to protection from torture and ill-treatment establishes objective restrictions on certain therapies. In the context of health-related abuses, the focus on the prohibition of torture strengthens the call for accountability and strikes a proper balance between individual freedom and dignity and public health concerns. In that fashion, attention to the torture framework ensures that
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Health
- Person(s) affected
- All
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 4
- Paragraph text
- system inadequacies, lack of resources or services will not justify ill-treatment. Although resource constraints may justify only partial fulfilment of some aspects of the right to health, a State cannot justify its non-compliance with core obligations, such as the absolute prohibition of torture, under any circumstances.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Health
- Person(s) affected
- All
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 5
- Paragraph text
- By reframing violence and abuses in health-care settings as prohibited ill-treatment, victims and advocates are afforded stronger legal protection and redress for violations of human rights. In this respect, the recent general comment No. 3 (2012) of the Committee against Torture on the right to a remedy and reparation offers valuable guidance regarding proactive measures required to prevent forced interventions. Notably, the Committee considers that the duty to provide remedy and reparation extends to all acts of ill-treatment, so that it is immaterial for this purpose whether abuses in health-care settings meet the criteria for torture per se. This framework opens new possibilities for holistic social processes that foster appreciation of the lived experiences of persons, including measures of satisfaction and guarantees of non-repetition, and the repeal of inconsistent legal provisions.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Health
- Violence
- Person(s) affected
- All
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 6a
- Paragraph text
- [The Special Rapporteur calls upon all States to:] Enforce the prohibition of torture in all health-care institutions, both public and private, by, inter alia, declaring that abuses committed in the context of health-care can amount to torture or cruel, inhuman or degrading treatment or punishment; regulating health-care practices with a view to preventing mistreatment under any pretext; and integrating the provisions of prevention of torture and ill-treatment into health-care policies;
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Health
- Person(s) affected
- All
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 6b
- Paragraph text
- [The Special Rapporteur calls upon all States to:] Promote accountability for torture and ill-treatment in health-care settings by identifying laws, policies and practices that lead to abuse; and enable national preventive mechanisms to systematically monitor, receive complaints and initiate prosecutions;
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Health
- Person(s) affected
- All
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 6c
- Paragraph text
- [The Special Rapporteur calls upon all States to:] Conduct prompt, impartial and thorough investigations into all allegations of torture and ill-treatment in health-care settings; where the evidence warrants it, prosecute and take action against perpetrators; and provide victims with effective remedy and redress, including measures of reparation, satisfaction and guarantees of non-repetition as well as restitution, compensation and rehabilitation;
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Health
- Person(s) affected
- All
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 6d
- Paragraph text
- [The Special Rapporteur calls upon all States to:] Provide appropriate human rights education and information to health-care personnel on the prohibition of torture and ill-treatment and the existence, extent, severity and consequences of various situations amounting to torture and cruel, inhuman or degrading treatment or punishment; and promote a culture of respect for human integrity and dignity, respect for diversity and the elimination of attitudes of pathologizaton and homophobia. Train doctors, judges, prosecutors and police on the standards regarding free and informed consent;
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Education
- Equality & Inclusion
- Governance & Rule of Law
- Health
- Person(s) affected
- All
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 6e
- Paragraph text
- [The Special Rapporteur calls upon all States to:] Safeguard free and informed consent on an equal basis for all individuals without any exception, through legal framework and judicial and administrative mechanisms, including through policies and practices to protect against abuses. Any legal provisions to the contrary, such as provisions allowing confinement or compulsory treatment in mental health settings, including through guardianship and other substituted decision-making, must be revised. Adopt policies and protocols that uphold autonomy, self-determination and human dignity. Ensure that information on health is fully available, acceptable, accessible and of good quality; and that it is imparted and comprehended by means of supportive and protective measures such as a wide range of community-based services and supports (A/64/272, para. 93). Instances of treatment without informed consent should be investigated; redress to victims of such treatment should be provided;
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Health
- Person(s) affected
- All
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 6f
- Paragraph text
- [The Special Rapporteur calls upon all States to:] Ensure special protection of minority and marginalized groups and individuals as a critical component of the obligation to prevent torture and ill-treatment by, inter alia, investing in and offering marginalized individuals a wide range of voluntary supports that enable them to exercise their legal capacity and that fully respect their individual autonomy, will and preferences.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 7a
- Paragraph text
- [The Special Rapporteur calls upon all States to:] Adopt a human rights-based approach to drug control as a matter of priority to prevent the continuing violations of rights stemming from the current approaches to curtailing supply and demand (A/65/255, para. 48). Ensure that national drug control laws recognize the indispensible nature of narcotic and psychotropic drugs for the relief of pain and suffering; review national legislation and administrative procedures to guarantee adequate availability of those medicines for legitimate medical uses;
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Health
- Person(s) affected
- All
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 7b
- Paragraph text
- [The Special Rapporteur calls upon all States to:] Ensure full access to palliative care and overcome current regulatory, educational and attitudinal obstacles that restrict availability to essential palliative care medications, especially oral morphine. States should devise and implement policies that promote widespread understanding about the therapeutic usefulness of controlled substances and their rational use;
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Education
- Health
- Person(s) affected
- All
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 7c
- Paragraph text
- [The Special Rapporteur calls upon all States to:] Develop and integrate palliative care into the public health system by including it in all national health plans and policies, curricula and training programmes and developing the necessary standards, guidelines and clinical protocols.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Health
- Person(s) affected
- All
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 8a
- Paragraph text
- [The Special Rapporteur calls upon all States to:] Close compulsory drug detention and "rehabilitation" centres without delay and implement voluntary, evidence-based and rights-based health and social services in the community. Undertake investigations to ensure that abuses, including torture or cruel, inhuman and degrading treatment, are not taking place in privately-run centres for the treatment of drug dependence;
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Health
- Violence
- Person(s) affected
- All
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 8b
- Paragraph text
- [The Special Rapporteur calls upon all States to:] Cease support for the operation of existing drug detention centres or the creation of new centres. Any decision to provide funding should be made only following careful risk assessment. If provided, any such funds should be clearly time-limited and provided only on the conditions that the authorities (a) commit to a rapid process for closing drug detention centres and reallocating said resources to scaling up voluntary, community-based, evidence-based services for treatment of drug dependence; and (b) replace punitive approaches and compulsory elements to drug treatment with other, evidence-based efforts to prevent HIV and other drug-related harms. Such centres, while still operating as the authorities move to close them, are subject to fully independent monitoring;
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Health
- Person(s) affected
- Persons on the move
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 8c
- Paragraph text
- [The Special Rapporteur calls upon all States to:] Establish an effective mechanism for monitoring dependence treatment practices and compliance with international norms;
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Person(s) affected
- All
- N.A.
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 8d
- Paragraph text
- [The Special Rapporteur calls upon all States to:] Ensure that all harm-reduction measures and drug-dependence treatment services, particularly opioid substitution therapy, are available to people who use drugs, in particular those among incarcerated populations (A/65/255, para. 76).
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Health
- Person(s) affected
- N.A.
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 9
- Paragraph text
- The Special Rapporteur calls upon all States to repeal any law allowing intrusive and irreversible treatments, including forced genital-normalizing surgery, involuntary sterilization, unethical experimentation, medical display, "reparative therapies" or "conversion therapies", when enforced or administered without the free and informed consent of the person concerned. He also calls upon them to outlaw forced or coerced sterilization in all circumstances and provide special protection to individuals belonging to marginalized groups.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Harmful Practices
- Health
- Person(s) affected
- All
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 10a
- Paragraph text
- [The Special Rapporteur calls upon all States to:] Review the anti-torture framework in relation to persons with disabilities in line with the Convention on the Rights of Persons with Disabilities as authoritative guidance regarding their rights in the context of health-care;
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Health
- Person(s) affected
- Persons with disabilities
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 10b
- Paragraph text
- [The Special Rapporteur calls upon all States to:] Impose an absolute ban on all forced and non-consensual medical interventions against persons with disabilities, including the non-consensual administration of psychosurgery, electroshock and mind-altering drugs such as neuroleptics, the use of restraint and solitary confinement, for both long- and short-term application. The obligation to end forced psychiatric interventions based solely on grounds of disability is of immediate application and scarce financial resources cannot justify postponement of its implementation;
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Health
- Person(s) affected
- Persons with disabilities
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 10c
- Paragraph text
- [The Special Rapporteur calls upon all States to:] Replace forced treatment and commitment by services in the community. Such services must meet needs expressed by persons with disabilities and respect the autonomy, choices, dignity and privacy of the person concerned, with an emphasis on alternatives to the medical model of mental health, including peer support, awareness-raising and training of mental health-care and law enforcement personnel and others;
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Health
- Person(s) affected
- Persons with disabilities
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 10d
- Paragraph text
- [The Special Rapporteur calls upon all States to:] Revise the legal provisions that allow detention on mental health grounds or in mental health facilities, and any coercive interventions or treatments in the mental health setting without the free and informed consent by the person concerned. Legislation authorizing the institutionalization of persons with disabilities on the grounds of their disability without their free and informed consent must be abolished.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Health
- Person(s) affected
- Persons with disabilities
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 11
- Paragraph text
- Mistreatment in health-care settings has received little specific attention by the mandate of the Special Rapporteur, as the denial of health-care has often been understood as essentially interfering with the "right to health".
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Health
- Person(s) affected
- N.A.
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 11
- Paragraph text
- The Special Rapporteur calls upon all States to ensure that women have access to emergency medical care, including post-abortion care, without fear of criminal penalties or reprisals. States whose domestic law authorizes abortions under various circumstances should ensure that services are effectively available without adverse consequences to the woman or the health professional.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Health
- Person(s) affected
- Women
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 12
- Paragraph text
- While different aspects of torture and ill-treatment in health-care settings have been previously explored by the rapporteurship and other United Nations mechanisms, the Special Rapporteur feels that there is a need to highlight the specific dimension and intensity of the problem, which often goes undetected; identify abuses that exceed the scope of violations of the right to health and could amount to torture and ill-treatment; and strengthen accountability and redress mechanisms.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Health
- Person(s) affected
- N.A.
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 13
- Paragraph text
- The Special Rapporteur recognizes that there are unique challenges to stopping torture and ill-treatment in health-care settings due, among other things, to a perception that, while never justified, certain practices in health-care may be defended by the authorities on grounds of administrative efficiency, behaviour modification or medical necessity. The intention of the present report is to analyse all forms of mistreatment premised on or attempted to be justified on the basis of health-care policies, under the common rubric of their purported justification as "health-care treatment", and to find cross-cutting issues that apply to all or most of these practices.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Health
- Person(s) affected
- All
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 14
- Paragraph text
- Both the European Court of Human Rights (ECHR) and the Inter-American Court of Human Rights have stated that the definition of torture is subject to ongoing reassessment in light of present-day conditions and the changing values of democratic societies.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 15
- Paragraph text
- The conceptualization of abuses in health-care settings as torture or ill-treatment is a relatively recent phenomenon. In the present section, the Special Rapporteur embraces this ongoing paradigm shift, which increasingly encompasses various forms of abuse in health-care settings within the discourse on torture. He demonstrates that, while the prohibition of torture may have originally applied primarily in the context of interrogation, punishment or intimidation of a detainee, the international community has begun to recognize that torture may also occur in other contexts.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Health
- Violence
- Person(s) affected
- N.A.
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 16
- Paragraph text
- The analysis of abuse in health-care settings through the lens of torture and ill-treatment is based on the definition of these violations provided by the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and its authoritative interpretations. In order to demonstrate how abusive practices in health-care settings meet the definition of torture, the following section provides an overview of the main elements of the definition of torture.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Health
- Violence
- Person(s) affected
- N.A.
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 17
- Paragraph text
- At least four essential elements are reflected in the definition of torture provided in article 1, paragraph 1, of the Convention against Torture: an act inflicting severe pain or suffering, whether physical or mental; the element of intent; the specific purpose; and the involvement of a State official, at least by acquiescence (A/HRC/13/39/Add.5, para. 30). Acts falling short of this definition may constitute cruel, inhuman or degrading treatment or punishment under article 16 of the Convention (A/63/175, para. 46). The previous Special Rapporteurs have covered in great detail the main components of the definition of torture. Nevertheless, there are a few salient points worth elaborating for the purpose of the present report.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Health
- Person(s) affected
- N.A.
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 18
- Paragraph text
- The jurisprudence and authoritative interpretations of international human rights bodies provide useful guidance on how the four criteria of the definition of torture apply in the context of health-care settings. ECHR has noted that a violation of article 3 may occur where the purpose or intention of the State's action or inaction was not to degrade, humiliate or punish the victim, but where this nevertheless was the result.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Health
- Person(s) affected
- All
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 19
- Paragraph text
- The application of the criteria of severe pain or suffering, intent, and involvement of a public official or other person acting in an official capacity, by consent or acquiescence to abuses in health-care settings, is relatively straightforward. The criterion of the specific purpose warrants some analysis.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Health
- Person(s) affected
- All
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 20
- Paragraph text
- The mandate has stated previously that intent, required in article 1 of the Convention, can be effectively implied where a person has been discriminated against on the basis of disability. This is particularly relevant in the context of medical treatment, where serious violations and discrimination against persons with disabilities may be defended as "well intended" on the part of health-care professionals. Purely negligent conduct lacks the intent required under article 1, but may constitute ill-treatment if it leads to severe pain and suffering (A/63/175, para. 49).
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Health
- Person(s) affected
- Persons with disabilities
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 21
- Paragraph text
- Furthermore, article 1 explicitly names several purposes for which torture can be inflicted: extraction of a confession; obtaining information from a victim or a third person; punishment, intimidation and coercion; and discrimination. However, there is a general acceptance that these stated purposes are only of an indicative nature and not exhaustive. At the same time, only purposes which have "something in common with the purposes expressly listed" are sufficient (A/HRC/13/39/Add.5, para. 35).
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 22
- Paragraph text
- Although it may be challenging to satisfy the required purpose of discrimination in some cases, as most likely it will be claimed that the treatment is intended to benefit the "patient", this may be met in a number of ways. Specifically, the description of abuses outlined below demonstrates that the explicit or implicit aim of inflicting punishment, or the objective of intimidation, often exist alongside ostensibly therapeutic aims.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Health
- Person(s) affected
- All
- N.A.
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 23
- Paragraph text
- The Committee against Torture interprets State obligations to prevent torture as indivisible, interrelated, and interdependent with the obligation to prevent cruel, inhuman, or degrading treatment or punishment (ill-treatment) because "conditions that give rise to ill-treatment frequently facilitate torture". It has established that "each State party should prohibit, prevent and redress torture and ill-treatment in all contexts of custody or control, for example, in prisons, hospitals, schools, institutions that engage in the care of children, the aged, the mentally ill or disabled, in military service, and other institutions as well as contexts where the failure of the State to intervene encourages and enhances the danger of privately inflicted harm".
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Children
- Persons with disabilities
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 24
- Paragraph text
- Indeed, the State's obligation to prevent torture applies not only to public officials, such as law enforcement agents, but also to doctors, health-care professionals and social workers, including those working in private hospitals, other institutions and detention centres (A/63/175, para. 51). As underlined by the Committee against Torture, the prohibition of torture must be enforced in all types of institutions and States must exercise due diligence to prevent, investigate, prosecute and punish violations by non-State officials or private actors.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Health
- Person(s) affected
- All
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 25
- Paragraph text
- In da Silva Pimentel v. Brazil, the Committee on the Elimination of Discrimination against Women observed that "the State is directly responsible for the action of private institutions when it outsources its medical services" and "always maintains the duty to regulate and monitor private health-care institutions". The Inter-American Court of Human Rights addressed State responsibility for actions of private actors in the context of health-care delivery in Ximenes Lopes v. Brazil.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Health
- Person(s) affected
- Women
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 26
- Paragraph text
- Ensuring special protection of minority and marginalized groups and individuals is a critical component of the obligation to prevent torture and ill-treatment. Both the Committee against Torture and the Inter-American Court of Human Rights have confirmed that States have a heightened obligation to protect vulnerable and/or marginalized individuals from torture, as such individuals are generally more at risk of experiencing torture and ill-treatment.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 27
- Paragraph text
- In all legal systems, capacity is a condition assigned to agents that exercise free will and choice and whose actions are attributed legal effects. Capacity is a rebuttable presumption; therefore, "incapacity" has to be proven before a person can be designated as incapable of making decisions. Once a determination of incapacity is made, the person's expressed choices cease to be treated meaningfully. One of the core principles of the Convention on the Rights of Persons with Disabilities is "respect for inherent dignity, individual autonomy including the freedom to make one's own choices, and independence of persons" (art. 3 (a)). The Committee on the Rights of Persons with Disabilities has interpreted the core requirement of article 12 to be the replacement of substituted decision-making regimes by supported decision-making, which respects the person's autonomy, will and preferences.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Persons with disabilities
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 28
- Paragraph text
- The Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health observed that informed consent is not mere acceptance of a medical intervention, but a voluntary and sufficiently informed decision. Guaranteeing informed consent is a fundamental feature of respecting an individual's autonomy, self-determination and human dignity in an appropriate continuum of voluntary health-care services (A/64/272, para. 18).
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Health
- Person(s) affected
- All
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 29
- Paragraph text
- As the Special Rapporteur on the right to health observed, while informed consent is commonly enshrined in the legal framework at the national level, it is frequently compromised in the health-care setting. Structural inequalities, such as the power imbalance between doctors and patients, exacerbated by stigma and discrimination, result in individuals from certain groups being disproportionately vulnerable to having informed consent compromised (ibid., para. 92).
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Health
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 30
- Paragraph text
- The intimate link between forced medical interventions based on discrimination and the deprivation of legal capacity has been emphasized both by the Committee on the Rights of Persons with Disabilities and the previous Special Rapporteur on the question of torture.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Health
- Person(s) affected
- Persons with disabilities
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 31
- Paragraph text
- Patients in health-care settings are reliant on health-care workers who provide them services. As the previous Special Rapporteur stated: "Torture, as the most serious violation of the human right to personal integrity and dignity, presupposes a situation of powerlessness, whereby the victim is under the total control of another person." Deprivation of legal capacity, when a person's exercise of decision-making is taken away and given to others, is one such circumstance, along with deprivation of liberty in prisons or other places (A/63/175, para. 50).
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Health
- Person(s) affected
- All
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 32
- Paragraph text
- The mandate has recognized that medical treatments of an intrusive and irreversible nature, when lacking a therapeutic purpose, may constitute torture or ill-treatment when enforced or administered without the free and informed consent of the person concerned (ibid., paras. 40, 47). This is particularly the case when intrusive and irreversible, non-consensual treatments are performed on patients from marginalized groups, such as persons with disabilities, notwithstanding claims of good intentions or medical necessity. For example, the mandate has held that the discriminatory character of forced psychiatric interventions, when committed against persons with psychosocial disabilities, satisfies both intent and purpose required under the article 1 of the Convention against Torture, notwithstanding claims of "good intentions" by medical professionals (ibid., paras. 47, 48). In other examples, the administration of non-consensual medication or involuntary sterilization is often claimed as being a necessary treatment for the so-called best interest of the person concerned.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Health
- Person(s) affected
- Persons with disabilities
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 33
- Paragraph text
- However, in response to reports of sterilizations of women in 2011, the International Federation of Gynecology and Obstetrics emphasized that "sterilization for prevention of future pregnancy cannot be ethically justified on grounds of medical emergency. Even if a future pregnancy may endanger a woman's life or health, she … must be given the time and support she needs to consider her choice. Her informed decision must be respected, even if it is considered liable to be harmful to her health."
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Health
- Person(s) affected
- Women
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 34
- Paragraph text
- In those cases, dubious grounds of medical necessity were used to justify intrusive and irreversible procedures performed on patients without full free and informed consent. In this light, it is therefore appropriate to question the doctrine of "medical necessity" established by the ECHR in the case of Herczegfalvy v. Austria (1992), where the Court held that continuously sedating and administering forcible feeding to a patient who was physically restrained by being tied to a bed for a period of two weeks was nonetheless consistent with article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms because the treatment in question was medically necessary and in line with accepted psychiatric practice at that time.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Health
- Person(s) affected
- All
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 35
- Paragraph text
- The doctrine of medical necessity continues to be an obstacle to protection from arbitrary abuses in health-care settings. It is therefore important to clarify that treatment provided in violation of the terms of the Convention on the Rights of Persons with Disabilities - either through coercion or discrimination - cannot be legitimate or justified under the medical necessity doctrine.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Health
- Person(s) affected
- Persons with disabilities
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 36
- Paragraph text
- In a 2011 report (A/HRC/19/41), the United Nations High Commissioner for Human Rights examined discriminatory laws and practices and acts of violence against individuals based on sexual orientation and gender identity in health-care settings. She observed that a pattern of human rights violations emerged that demanded a response. With the adoption in June 2011 of resolution 17/19, the Human Rights Council formally expressed its "grave concern" regarding violence and discrimination based on sexual orientation and gender identity.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Gender
- Health
- Person(s) affected
- LGBTQI+
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 37
- Paragraph text
- Many policies and practices that lead to abuse in health-care settings are due to discrimination targeted at persons who are marginalized. Discrimination plays a prominent role in an analysis of reproductive rights violations as forms of torture or ill-treatment because sex and gender bias commonly underlie such violations. The mandate has stated, with regard to a gender-sensitive definition of torture, that the purpose element is always fulfilled when it comes to gender-specific violence against women, in that such violence is inherently discriminatory and one of the possible purposes enumerated in the Convention is discrimination (A/HRC/7/3, para. 68).
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Gender
- Health
- Violence
- Person(s) affected
- Women
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 38
- Paragraph text
- In the context of prioritizing informed consent as a critical element of a voluntary counselling, testing and treatment continuum, the Special Rapporteur on the right to health has also observed that special attention should be paid to vulnerable groups. Principles 17 and 18 of the Yogyakarta Principles, for instance, highlight the importance of safeguarding informed consent of sexual minorities. Health-care providers must be cognizant of, and adapt to, the specific needs of lesbian, gay, bisexual, transgender and intersex persons (A/64/272, para. 46). The Committee on Economic, Social and Cultural Rights has indicated that the International Covenant on Economic, Social and Cultural Rights proscribes any discrimination in access to health-care and the underlying determinants of health, as well as to means and entitlements for their procurement, on the grounds of sexual orientation and gender identity.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Gender
- Health
- Person(s) affected
- LGBTQI+
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 39
- Paragraph text
- Numerous reports have documented a wide range of abuses against patients and individuals under medical supervision. Health providers allegedly withhold care or perform treatments that intentionally or negligently inflict severe pain or suffering for no legitimate medical purpose. Medical care that causes severe suffering for no justifiable reason can be considered cruel, inhuman or degrading treatment or punishment, and if there is State involvement and specific intent, it is torture.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Health
- Person(s) affected
- All
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 40
- Paragraph text
- Compulsory detention for drug users is common in so-called rehabilitation centres. Sometimes referred to as drug treatment centres or "reeducation through labor" centres or camps, these are institutions commonly run by military or paramilitary, police or security forces, or private companies. Persons who use, or are suspected of using, drugs and who do not voluntarily opt for drug treatment and rehabilitation are confined in such centres and compelled to undergo diverse interventions. In some countries, a wide range of other marginalized groups, including street children, persons with psychosocial disabilities, sex workers, homeless individuals and tuberculosis patients, are reportedly detained in these centres.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Health
- Violence
- Person(s) affected
- Children
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 41
- Paragraph text
- Numerous reports document that users of illicit drugs who are detained in such centres undergo painful withdrawal from drug dependence without medical assistance, administration of unknown or experimental medications, State-sanctioned beatings, caning or whipping, forced labour, sexual abuse and intentional humiliation. Other reported abuses included "flogging therapy", "bread and water therapy", and electroshock resulting in seizures, all in the guise of rehabilitation. In such settings, medical professionals trained to manage drug dependence disorders as medical illnesses are often unavailable.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Harmful Practices
- Health
- Violence
- Person(s) affected
- All
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 42
- Paragraph text
- Compulsory treatment programmes that consist primarily of physical disciplinary exercises, often including military-style drills, disregard medical evidence (A/65/255, paras. 31, 34). According to the World Health Organization (WHO) and the United Nations Office on Drugs and Crime (UNODC), "neither detention nor forced labour have been recognized by science as treatment for drug use disorders". Such detention - frequently without medical evaluation, judicial review or right of appeal - offers no evidence-based or effective treatment. Detention and forced labour programmes therefore violate international human rights law and are illegitimate substitutes for evidence-based measures, such as substitution therapy, psychological interventions and other forms of treatment given with full, informed consent (A/65/255, para. 31). The evidence shows that this arbitrary and unjustified detention is frequently accompanied by - and is the setting for - egregious physical and mental abuse.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Health
- Person(s) affected
- All
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 43
- Paragraph text
- The numerous calls by various international and regional organizations to close compulsory drug detention centres, as well as the numerous injunctions and recommendations contained in the recently released guidelines by WHO on pharmacotherapy for opiate dependence, the UNODC policy guidance on the organization's human rights responsibilities in drug detention centres, and resolutions by the Commission on Narcotic Drugs, are routinely ignored. These centres continue to operate often with direct or indirect support and assistance from international donors without any adequate human rights oversight.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Health
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 44
- Paragraph text
- Notwithstanding the commitment to scale-up methadone treatment and evidence-based treatment as opposed to punitive approaches, those remanded to compulsory treatment in the punitive drug-free centres continue to exceed, exponentially, the number receiving evidence-based treatment for drug dependence.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Health
- Person(s) affected
- N.A.
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 45
- Paragraph text
- The Special Rapporteur has, on numerous occasions, responded to various initiatives in the area of gender mainstreaming and combating violence against women, by, inter alia, examining gender-specific forms of torture with a view to ensure that the torture protection framework is applied in a gender-inclusive manner. The Special Rapporteur seeks to complement these efforts by identifying the reproductive rights practices in health-care settings that he believes amount to torture or ill-treatment.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Gender
- Health
- Violence
- Person(s) affected
- Women
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 46
- Paragraph text
- International and regional human rights bodies have begun to recognize that abuse and mistreatment of women seeking reproductive health services can cause tremendous and lasting physical and emotional suffering, inflicted on the basis of gender. Examples of such violations include abusive treatment and humiliation in institutional settings; involuntary sterilization; denial of legally available health services such as abortion and post-abortion care; forced abortions and sterilizations; female genital mutilation; violations of medical secrecy and confidentiality in health-care settings, such as denunciations of women by medical personnel when evidence of illegal abortion is found; and the practice of attempting to obtain confessions as a condition of potentially life-saving medical treatment after abortion.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Harmful Practices
- Health
- Violence
- Person(s) affected
- Women
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 47
- Paragraph text
- In the case of R.R. v. Poland, for instance, ECHR found a violation of article 3 in the case of a woman who was denied access to prenatal genetic testing when an ultrasound revealed a potential foetal abnormality. The Court recognized "that the applicant was in a situation of great vulnerability" and that R.R.'s access to genetic testing was "marred by procrastination, confusion and lack of proper counselling and information given to the applicant". Access to information about reproductive health is imperative to a woman's ability to exercise reproductive autonomy, and the rights to health and to physical integrity.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Health
- Person(s) affected
- Women
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 48
- Paragraph text
- Some women may experience multiple forms of discrimination on the basis of their sex and other status or identity. Targeting ethnic and racial minorities, women from marginalized communities and women with disabilities for involuntary sterilization because of discriminatory notions that they are "unfit" to bear children is an increasingly global problem. Forced sterilization is an act of violence, a form of social control, and a violation of the right to be free from torture and other cruel, inhuman, or degrading treatment or punishment. The mandate has asserted that "forced abortions or sterilizations carried out by State officials in accordance with coercive family planning laws or policies may amount to torture".
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Harmful Practices
- Health
- Violence
- Person(s) affected
- Children
- Persons with disabilities
- Women
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 49
- Paragraph text
- For many rape survivors, access to a safe abortion procedure is made virtually impossible by a maze of administrative hurdles, and by official negligence and obstruction. In the landmark decision of K.N.L.H. v. Peru, the Human Rights Committee deemed the denial of a therapeutic abortion a violation of the individual's right to be free from ill-treatment. In the case of P. and S. v. Poland, ECHR stated that "the general stigma attached to abortion and to sexual violence …, caus[ed] much distress and suffering, both physically and mentally".
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Health
- Violence
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 50
- Paragraph text
- The Committee against Torture has repeatedly expressed concerns about restrictions on access to abortion and about absolute bans on abortion as violating the prohibition of torture and ill-treatment. On numerous occasions United Nations bodies have expressed concern about the denial of or conditional access to post-abortion care. often for the impermissible purposes of punishment or to elicit confession. The Human Rights Committee explicitly stated that breaches of article 7 of the International Covenant on Civil and Political Rights include forced abortion, as well as denial of access to safe abortions to women who have become pregnant as a result of rape and raised concerns about obstacles to abortion where it is legal.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Health
- Person(s) affected
- Women
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 51
- Paragraph text
- In 2012, WHO estimated that 5.5 billion people live in countries with low or no access to controlled medicines and have no or insufficient access to treatment for moderate to severe pain. Despite the repeated reminders made by the Commission on Narcotic Drugs to States of their obligations, 83 per cent of the world population has either no or inadequate access to treatment for moderate to severe pain. Tens of millions of people, including around 5.5 million terminal cancer patients and 1 million end-stage HIV/AIDS patients, suffer from moderate to severe pain each year without treatment.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Health
- Person(s) affected
- All
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 52
- Paragraph text
- Many countries fail to make adequate arrangements for the supply of these medications. Low- and middle-income countries account for 6 per cent of morphine use worldwide while having about half of all cancer patients and 95 per cent of all new HIV infections. Thirty-two countries in Africa have almost no morphine available at all. In the United States, over a third of patients are not adequately treated for pain. In France, a study found that doctors underestimated pain in over half of their AIDS patients. In India, more than half of the country's regional cancer centres do not have morphine or doctors trained in using it. This is despite the fact that 70 per cent or more of their patients have advanced cancer and are likely to require pain treatment.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Health
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 53
- Paragraph text
- Although relatively inexpensive and highly effective medications such as morphine and other narcotic drugs have proven essential "for the relief of pain and suffering" , these types of medications are virtually unavailable in more than 150 countries. Obstacles that unnecessarily impede access to morphine and adversely affect its availability include overly restrictive drug control regulations and, more frequently, misinterpretation of otherwise appropriate regulations; deficiency in drug supply management; inadequate infrastructure; lack of prioritization of palliative care ; ingrained prejudices about using opioids for medical purposes; and the absence of pain management policies or guidelines for practitioners.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Health
- Person(s) affected
- All
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 54
- Paragraph text
- Generally, denial of pain treatment involves acts of omission rather than commission, and results from neglect and poor Government policies, rather than from an intention to inflict suffering. However, not every case where a person suffers from severe pain but has no access to appropriate treatment will constitute cruel, inhuman, or degrading treatment or punishment. This will only be the case when the suffering is severe and meets the minimum threshold under the prohibition against torture and ill-treatment; when the State is, or should be, aware of the suffering, including when no appropriate treatment was offered; and when the Government failed to take all reasonable steps to protect individuals' physical and mental integrity.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Health
- Person(s) affected
- All
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 55
- Paragraph text
- Ensuring the availability and accessibility of medications included in the WHO Model List of Essential Medicines is not just a reasonable step but a legal obligation under the Single Convention on Narcotic Drugs, 1961. When the failure of States to take positive steps, or to refrain from interfering with health-care services, condemns patients to unnecessary suffering from pain, States not only fall foul of the right to health but may also violate an affirmative obligation under the prohibition of torture and ill-treatment (A/HRC/10/44 and Corr.1, para. 72).
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Health
- Person(s) affected
- All
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 56
- Paragraph text
- In a statement issued jointly with the Special Rapporteur on the right to health, the Special Rapporteur on the question of torture reaffirmed that the failure to ensure access to controlled medicines for the relief of pain and suffering threatens fundamental rights to health and to protection against cruel, inhuman and degrading treatment. Governments must guarantee essential medicines - which include, among others, opioid analgesics - as part of their minimum core obligations under the right to health, and take measures to protect people under their jurisdiction from inhuman and degrading treatment.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Health
- Person(s) affected
- All
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 57
- Paragraph text
- Under article 1 of the Convention on the Rights of Persons with Disabilities, persons with disabilities include those who have long-term intellectual or sensory impairments, which, in interaction with various barriers, may hinder their full and effective participation in society on an equal basis with others. These are individuals who have been either neglected or detained in psychiatric and social care institutions, psychiatric wards, prayer camps, secular and religious-based therapeutic boarding schools, boot camps, private residential treatment centres or traditional healing centres.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Health
- Person(s) affected
- Persons with disabilities
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 58
- Paragraph text
- In 2008 the mandate made significant strides in the development of norms for the abolition of forced psychiatric interventions on the basis of disability alone as a form of torture and ill-treatment (see A/63/175). The Convention on the Rights of Persons with Disabilities also provides authoritative guidance on the rights of persons with disabilities and prohibits involuntary treatment and involuntary confinement on the grounds of disability, superseding earlier standards such as the 1991 Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care (1991 Principles).
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Health
- Person(s) affected
- Persons with disabilities
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 59
- Paragraph text
- Severe abuses, such as neglect, mental and physical abuse and sexual violence, continue to be committed against people with psychosocial disabilities and people with intellectual disabilities in health-care settings.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Health
- Violence
- Person(s) affected
- Persons with disabilities
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 60
- Paragraph text
- There are several areas in which the Special Rapporteur would like to suggest steps beyond what has already been proposed by the mandate in its efforts to promote the Convention on the Rights of Persons with Disabilities as the new normative paradigm and call for measures to combat impunity.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Persons with disabilities
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 61
- Paragraph text
- Numerous calls by the mandate to review the anti-torture framework in relation to persons with disabilities remain to be addressed. It is therefore necessary to reaffirm that the Convention on the Rights of Persons with Disabilities offers the most comprehensive set of standards on the rights of persons with disabilities, inter alia, in the context of health care, where choices by people with disabilities are often overridden based on their supposed "best interests", and where serious violations and discrimination against persons with disabilities may be masked as "good intentions" of health professionals (A/63/175, para. 49).
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Health
- Person(s) affected
- Persons with disabilities
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 62
- Paragraph text
- It is necessary to highlight additional measures needed to prevent torture and ill-treatment against people with disabilities, by synthesizing standards and coordinating actions in line with the Convention on the Rights of Persons with Disabilities.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Persons with disabilities
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 63
- Paragraph text
- The mandate has previously declared that there can be no therapeutic justification for the use of solitary confinement and prolonged restraint of persons with disabilities in psychiatric institutions; both prolonged seclusion and restraint may constitute torture and ill-treatment (A/63/175, paras. 55-56). The Special Rapporteur has addressed the issue of solitary confinement and stated that its imposition, of any duration, on persons with mental disabilities is cruel, inhuman or degrading treatment (A/66/268, paras. 67-68, 78). Moreover, any restraint on people with mental disabilities for even a short period of time may constitute torture and ill-treatment. It is essential that an absolute ban on all coercive and non-consensual measures, including restraint and solitary confinement of people with psychological or intellectual disabilities, should apply in all places of deprivation of liberty, including in psychiatric and social care institutions. The environment of patient powerlessness and abusive treatment of persons with disabilities in which restraint and seclusion is used can lead to other non-consensual treatment, such as forced medication and electroshock procedures.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Health
- Person(s) affected
- Persons with disabilities
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 64
- Paragraph text
- The mandate continues to receive reports of the systematic use of forced interventions worldwide. Both this mandate and United Nations treaty bodies have established that involuntary treatment and other psychiatric interventions in health-care facilities are forms of torture and ill-treatment. Forced interventions, often wrongfully justified by theories of incapacity and therapeutic necessity inconsistent with the Convention on the Rights of Persons with Disabilities, are legitimized under national laws, and may enjoy wide public support as being in the alleged "best interest" of the person concerned. Nevertheless, to the extent that they inflict severe pain and suffering, they violate the absolute prohibition of torture and cruel, inhuman and degrading treatment (A/63/175, paras. 38, 40, 41). Concern for the autonomy and dignity of persons with disabilities leads the Special Rapporteur to urge revision of domestic legislation allowing for forced interventions.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Health
- Person(s) affected
- Persons with disabilities
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 65
- Paragraph text
- Millions of people with disabilities are stripped of their legal capacity worldwide, due to stigma and discrimination, through judicial declaration of incompetency or merely by a doctor's decision that the person "lacks capacity" to make a decision. Deprived of legal capacity, people are assigned a guardian or other substitute decision maker, whose consent will be deemed sufficient to justify forced treatment (E/CN.4/2005/51, para. 79).
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Person(s) affected
- Persons with disabilities
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 66
- Paragraph text
- As earlier stated by the mandate, criteria that determine the grounds upon which treatment can be administered in the absence of free and informed consent should be clarified in the law, and no distinction between persons with or without disabilities should be made. Only in a life-threatening emergency in which there is no disagreement regarding absence of legal capacity may a health-care provider proceed without informed consent to perform a life-saving procedure. From this perspective, several of the 1991 Principles may require reconsideration as running counter to the provisions of the Convention on the Rights of Persons with Disabilities (A/63/175, para. 44).
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Health
- Humanitarian
- Person(s) affected
- Persons with disabilities
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 67
- Paragraph text
- In many countries where mental health policies and laws do exist, they focus on confinement of people with mental disabilities in psychiatric institutions but fail to effectively safeguard their human rights.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Health
- Person(s) affected
- Persons with disabilities
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 68
- Paragraph text
- Involuntary commitment to psychiatric institutions has been well documented. There are well-documented examples of people living their whole lives in such psychiatric or social care institutions. The Committee on the Rights of Persons with Disabilities has been very explicit in calling for the prohibition of disability-based detention, i.e. civil commitment and compulsory institutionalization or confinement based on disability. It establishes that community living, with support, is no longer a favourable policy development but an internationally recognized right. The Convention radically departs from this approach by forbidding deprivation of liberty based on the existence of any disability, including mental or intellectual, as discriminatory. Article 14, paragraph 1 (b), of the Convention unambiguously states that "the existence of a disability shall in no case justify a deprivation of liberty". Legislation authorizing the institutionalization of persons with disabilities on the grounds of their disability without their free and informed consent must be abolished. This must include the repeal of provisions authorizing institutionalization of persons with disabilities for their care and treatment without their free and informed consent, as well as provisions authorizing the preventive detention of persons with disabilities on grounds such as the likelihood of them posing a danger to themselves or others, in all cases in which such grounds of care, treatment and public security are linked in legislation to an apparent or diagnosed mental illness (A/HRC/10/48, paras. 48, 49).
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Persons with disabilities
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 69
- Paragraph text
- Deprivation of liberty on grounds of mental illness is unjustified if its basis is discrimination or prejudice against persons with disabilities. Under the European Convention on Human Rights, mental disorder must be of a certain severity in order to justify detention. The Special Rapporteur believes that the severity of the mental illness is not by itself sufficient to justify detention; the State must also show that detention is necessary to protect the safety of the person or of others. Except in emergency cases, the individual concerned should not be deprived of his liberty unless he has been reliably shown to be of "unsound mind". As detention in a psychiatric context may lead to non-consensual psychiatric treatment, the mandate has stated that deprivation of liberty that is based on the grounds of a disability and that inflicts severe pain or suffering could fall under the scope of the Convention against Torture (A/63/175, para. 65). In making such an assessment, factors such as fear and anxiety produced by indefinite detention, the infliction of forced medication or electroshock, the use of restraints and seclusion, the segregation from family and community, etc., should be taken into account.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Health
- Person(s) affected
- Persons with disabilities
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 70
- Paragraph text
- Moreover, the effects of institutionalization of individuals who do not meet appropriate admission criteria, as is the case in most institutions which are off the monitoring radar and lack appropriate admission oversight, raise particular questions under prohibition of torture and ill-treatment. Inappropriate or unnecessary non-consensual institutionalization of individuals may amount to torture or ill-treatment as use of force beyond that which is strictly necessary.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 71
- Paragraph text
- Numerous reports have documented mistreatment of or denial of treatment to people living with HIV/AIDS by health providers. They are reportedly turned away from hospitals, summarily discharged, denied access to medical services unless they consent to sterilization, and provided poor quality care that is both dehumanizing and damaging to their already fragile health status. Forced or compulsory HIV testing is also a common abuse that may constitute degrading treatment if it is "done on a discriminatory basis without respecting consent and necessity requirements" (A/HRC/10/44 and Corr.1, para. 65). Unauthorized disclosure of HIV status to sexual partners, family members, employers and other health workers is a frequent abuse against people living with HIV that may lead to physical violence.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Health
- Person(s) affected
- All
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 72
- Paragraph text
- People who use drugs are a highly stigmatized and criminalized population whose experience of health-care is often one of humiliation, punishment and cruelty. Drug users living with HIV are often denied emergency medical treatment. In some cases the laws specifically single out the status of a drug user as a stand-alone basis for depriving someone of custody or other parental rights. Use of drug registries - where people who use drugs are identified and listed by police and health-care workers, and their civil rights curtailed - are violations of patient confidentiality that lead to further ill-treatment by health providers.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Health
- Violence
- Person(s) affected
- All
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 73
- Paragraph text
- A particular form of ill-treatment and possibly torture of drug users is the denial of opiate substitution treatment, including as a way of eliciting criminal confessions through inducing painful withdrawal symptoms (A/HRC/10/44 and Corr.1, para. 57). The denial of methadone treatment in custodial settings has been declared to be a violation of the right to be free from torture and ill-treatment in certain circumstances (ibid., para. 71). Similar reasoning should apply to the non-custodial context, particularly in instances where Governments impose a complete ban on substitution treatment and harm reduction measures. The common practice of withholding anti-retroviral treatment from HIV-positive people who use drugs, on the assumption that they will not be capable of adhering to treatment, amounts to cruel and inhuman treatment, given the physical and psychological suffering as the disease progresses; it also constitutes abusive treatment based on unjustified discrimination solely related to health status.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Health
- Person(s) affected
- All
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 74
- Paragraph text
- By denying effective drug treatment, State drug policies intentionally subject a large group of people to severe physical pain, suffering and humiliation, effectively punishing them for using drugs and trying to coerce them into abstinence, in complete disregard of the chronic nature of dependency and of the scientific evidence pointing to the ineffectiveness of punitive measures.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Health
- Person(s) affected
- All
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 75
- Paragraph text
- A report on sex workers documented negative and obstructive attitudes on the part of medical workers, including denial of necessary health-care services. Public health rationales have in some instances led to mandatory HIV testing and exposure of their HIV status, accompanied by punitive measures. Breaches of privacy and confidentiality are a further indignity experienced by sex workers in health settings. Most recently, the Committee against Torture noted "reports of alleged lack of privacy and humiliating circumstances amounting to degrading treatment during medical examinations". The mandate has observed that acts aimed at humiliating the victim, regardless of whether severe pain has been inflicted, may constitute degrading treatment or punishment because of the incumbent mental suffering (E/CN.4/2006/6, para. 35).
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Health
- Person(s) affected
- All
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 76
- Paragraph text
- The Pan American Health Organization (PAHO) has concluded that homophobic ill-treatment on the part of health professionals is unacceptable and should be proscribed and denounced. There is an abundance of accounts and testimonies of persons being denied medical treatment, subjected to verbal abuse and public humiliation, psychiatric evaluation, a variety of forced procedures such as sterilization, State-sponsored forcible anal examinations for the prosecution of suspected homosexual activities, and invasive virginity examinations conducted by health-care providers, hormone therapy and genital-normalizing surgeries under the guise of so called "reparative therapies". These procedures are rarely medically necessary, can cause scarring, loss of sexual sensation, pain, incontinence and lifelong depression and have also been criticized as being unscientific, potentially harmful and contributing to stigma (A/HRC/14/20, para. 23). The Committee on the Elimination of Discrimination against Women expressed concern about lesbian, bisexual, transgender and intersex women as "victims of abuses and mistreatment by health service providers" (A/HRC/19/41, para. 56).
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Gender
- Harmful Practices
- Health
- Person(s) affected
- LGBTQI+
- Women
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 77
- Paragraph text
- Children who are born with atypical sex characteristics are often subject to irreversible sex assignment, involuntary sterilization, involuntary genital normalizing surgery, performed without their informed consent, or that of their parents, "in an attempt to fix their sex", leaving them with permanent, irreversible infertility and causing severe mental suffering.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Harmful Practices
- Health
- Violence
- Person(s) affected
- Children
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 78
- Paragraph text
- In many countries transgender persons are required to undergo often unwanted sterilization surgeries as a prerequisite to enjoy legal recognition of their preferred gender. In Europe, 29 States require sterilization procedures to recognize the legal gender of transgender persons. In 11 States where there is no legislation regulating legal recognition of gender, enforced sterilization is still practised. As at 2008, in the United States of America, 20 states required a transgender person to undergo "gender-confirming surgery" or "gender reassignment surgery" before being able to change their legal sex. In Canada, only the province of Ontario does not enforce "transsexual surgery" in order to rectify the recorded sex on birth certificates. Some domestic courts have found that not only does enforced surgery result in permanent sterility and irreversible changes to the body, and interfere in family and reproductive life, it also amounts to a severe and irreversible intrusion into a person's physical integrity. In 2012, the Swedish Administrative Court of Appeals ruled that a forced sterilization requirement to intrude into someone's physical integrity could not be seen as voluntary. In 2011, the Constitutional Court in Germany ruled that the requirement of gender reassignment surgery violated the right to physical integrity and self-determination. In 2009, the Austrian Administrative High Court also held that mandatory gender reassignment, as a condition for legal recognition of gender identity, was unlawful. In 2009, the former Commissioner for Human Rights of the Council of Europe observed that "[the involuntary sterilization] requirements clearly run counter to the respect for the physical integrity of the person".
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Gender
- Harmful Practices
- Health
- Person(s) affected
- LGBTQI+
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 79
- Paragraph text
- The mandate has noted that "members of sexual minorities are disproportionately subjected to torture and other forms of ill-treatment because they fail to conform to socially constructed gender expectations. Indeed, discrimination on grounds of sexual orientation or gender identity may often contribute to the process of the dehumanization of the victim, which is often a necessary condition for torture and ill-treatment to take place." "Medically worthless" practices of subjecting men suspected of homosexual conduct to non-consensual anal examinations to "prove" their homosexuality have been condemned by the Committee against Torture, the Special Rapporteur on the question of torture and the Working Group on Arbitrary Detention, which have held that the practice contravenes the prohibition of torture and ill-treatment (A/HRC/19/41, para. 37).
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Gender
- Year
- 2013
Paragraph
Certain forms of abuses in health-care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment 2013, para. 80
- Paragraph text
- Persons with disabilities are particularly affected by forced medical interventions, and continue to be exposed to non-consensual medical practices (A/63/175, para. 40). In the case of children in health-care settings, an actual or perceived disability may diminish the weight given to the child's views in determining their best interests, or may be taken as the basis of substitution of determination and decision-making by parents, guardians, carers or public authorities. Women living with disabilities, with psychiatric labels in particular, are at risk of multiple forms of discrimination and abuse in health-care settings. Forced sterilization of girls and women with disabilities has been widely documented. National law in Spain, among other countries, allows for the sterilization of minors who are found to have severe intellectual disabilities. The Egyptian Parliament failed to include a provision banning the use of sterilization as a "treatment" for mental illness in its patient protection law. In the United States, 15 states have laws that fail to protect women with disabilities from involuntary sterilization.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Health
- Violence
- Person(s) affected
- Children
- Girls
- Persons with disabilities
- Year
- 2013
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Legal status
- Non-negotiated soft law
- Document type
- Special Procedures' report
- Year
- 2015
- Document code
- A/HRC/28/68
Document
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 16
- Paragraph text
- Children deprived of their liberty are at a heightened risk of violence, abuse and acts of torture or cruel, inhuman or degrading treatment or punishment. Even very short periods of detention can undermine a child's psychological and physical well-being and compromise cognitive development. Children deprived of liberty are at a heightened risk of suffering depression and anxiety, and frequently exhibit symptoms consistent with post-traumatic stress disorder. Reports on the effects of depriving children of liberty have found higher rates of suicide and self-harm, mental disorder and developmental problems.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 17
- Paragraph text
- The unique vulnerability of children deprived of their liberty requires higher standards and broader safeguards for the prevention of torture and ill-treatment. Specific practices and issues, such as segregation, the organization and administration of detention facilities, disciplinary sanctions, opportunities for rehabilitation, the training of specially qualified personnel, family support and visits, the availability of alternative measures, and adequate monitoring and oversight, require specific attention and modified standards.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 18
- Paragraph text
- For the above reasons, the Special Rapporteur has chosen to dedicate his thematic report to the unique forms of protection due to children deprived of their liberty and the particular obligations of States with regard to preventing and eliminating torture and ill-treatment of children in the context of deprivation of liberty.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 19
- Paragraph text
- A number of international human rights treaties are relevant to torture and other ill-treatment in the context of children deprived of their liberty. These include the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishmentand the International Covenant on Civil and Political Rights, as well as regional treaties, such as African, Inter-American and European regional instruments. The Convention on the Rights of the Child is lex specialis on the human rights protections afforded to children.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 20
- Paragraph text
- Other legal instruments applicable to children include the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules), the United Nations Guidelines for the Prevention of Juvenile Delinquency (Riyadh Guidelines), the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (Havana Rules), the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (Bangkok Rules) and the Standard Minimum Rules for the Treatment of Prisoners.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Children
- Women
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 21
- Paragraph text
- For the purpose of the present report, "deprivation of liberty" denotes any form of detention or imprisonment or the placement of a child in a public or private custodial setting where that child is not permitted to leave at will by order of any judicial, administrative or other authority (A/68/295, para. 27). Deprivation of liberty involves more severe restriction of motion within a narrower space than mere interference with liberty of movement: it includes police custody, remand detention, imprisonment after conviction, house arrest, administrative detention, involuntary hospitalization and institutional custody. It also includes children deprived of their liberty by private individuals or entities that are empowered or authorized by a State to exercise powers of arrest or detention.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 22
- Paragraph text
- In accordance with the Convention on the Rights of the Child, and regardless of the age of majority, the terms "children" and "child" refer to all persons under the age of 18 years.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 23
- Paragraph text
- The prohibition of torture is one of the few absolute and non-derogable human rights standards, a peremptory norm of customary international law or jus cogens. In addition, international law acknowledges the need for special protections for children and detained persons.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Children
- Persons on the move
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 24
- Paragraph text
- In its general comment No. 2, the Committee against Torture interpreted States' obligations to prevent torture are indivisible, interrelated and interdependent with the obligation to prevent cruel, inhuman, or degrading treatment or punishment (ill-treatment) because conditions that give rise to ill-treatment frequently facilitate torture (CAT/C/GC/2, para. 3). The Convention on the Rights of the Child and the Havana Rules have extended this protection to children deprived of their liberty, specifying that no member of the detention facility or institutional personnel may inflict, instigate or tolerate any act of torture or any form of harsh, cruel, inhuman or degrading treatment, punishment, correction or discipline under any pretext or circumstance whatsoever.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 25
- Paragraph text
- Under article 37 (b) of the Convention on the Rights of the Child and explained by the Committee on the Rights of the Child in its general comment No. 10 (CRC/C/GC/10), the deprivation of liberty of a child should be a last resort measure to be used only for the shortest possible period of time. Similarly, the Havana Rules require that deprivation of liberty be limited to exceptional cases. Both the Beijing Rules and the Riyadh Guidelines emphasize this principle. In addition, the best interests of the child must be a primary consideration in every decision on initiating or continuing the deprivation of liberty of a child.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 26
- Paragraph text
- Where the deprivation of liberty of a child can be justified as necessary, limited and consistent with the best interests of the child, the child must be treated with humanity and respect for his or her inherent dignity and in a manner that takes into account the needs of persons of their age and maturity. The Convention on the Rights of the Child specifies that the right to be confined in an age-appropriate manner includes, in particular, the right to be separated from adults unless it is considered in the child's best interest not to do so, and the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances. Article 40 (1) of the Convention emphasizes this principle with regard to children in conflict with the law by adding the desirability of promoting the child's reintegration and assumption of a constructive role in society.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Children
- Families
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 27
- Paragraph text
- The Havana Rules indicate how States should approach the deprivation of liberty of children, going beyond the Standard Minimum Rules for the Treatment of Prisoners by including guidelines on classification and placement, physical environment and accommodation, education, vocational training and work, recreation, religion and medical care, notification of illness, injury and death, contact with the wider community, limitations of physical restraint and the use of force, as well as disciplinary procedures and return to the community.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 28
- Paragraph text
- The role of medical and forensic sciences in the prevention of torture and other ill-treatment for children deprived of their liberty is clear (see A/69/387, paras. 19-57). All children are to be properly interviewed and physically examined by a medical doctor or qualified nurse reporting to a doctor as soon as possible after their admission to an institution, preferably on the day of arrival. In the case of girls, access to gynaecologists and education on women's health care are to be provided.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Health
- Person(s) affected
- Children
- Girls
- Women
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 29
- Paragraph text
- To ensure that detention will not disrupt preparation for adulthood and the full realization of a child's potential, access to education is a fundamental right of children deprived of their liberty. While Rule 77 (1) of the Standard Minimum Rules for the Treatment of Prisoners states that the education of illiterates and children should be compulsory, articles 38 to 46 of the Havana Rules also recommend participation in community schools, the availability of diplomas without reference to institutionalization, and the provision of vocational training.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Education
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 30
- Paragraph text
- Article 40, paragraphs 3 (b) and (4), of the Convention on the Rights of the Child provides that alternatives to detention, such as care, guidance and supervision orders, counselling; probation, foster care, education and vocational training programmes should first be sought, or other alternatives that ensure that children are dealt with in a manner appropriate to their well-being and proportionate to both their circumstances and the offence committed.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Education
- Governance & Rule of Law
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 31
- Paragraph text
- Lastly, regardless of the form of deprivation of liberty, whether criminal, institutional or administrative, article 37 (d) of the Convention on the Rights of the Child requires that any decision to deprive a child of liberty must be subject to periodic review of its continuing necessity and appropriateness. In its general comment No. 35, the Human Rights Committee specified that the child has a right to be heard, directly or through legal or other appropriate assistance, in relation to any decision regarding their deprivation of liberty, and that the procedures employed should be child-appropriate (CCPR/C/GC/35, para. 62).
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 32
- Paragraph text
- Children are particularly vulnerable to certain human rights violations, including torture and other forms of ill-treatment. The Convention on the Rights of the Child, in its article 37 (c), establishes the obligation to take into account the age-specific needs of children. The Human Rights Committee, the European Court of Human Rights and the Inter-American Court of Human Rights, have also recognized the need for States to provide special measures or heightened "due diligence" to protect the personal liberty and security of every child.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 33
- Paragraph text
- Children experience pain and suffering differently to adults owing to their physical and emotional development and their specific needs. In children, ll-treatment may cause even greater or irreversible damage than for adults. Moreover, healthy development can be derailed by excessive or prolonged activation of stress response systems in the body, with damaging long-term effects on learning, behaviour and health. A number of studies have shown that, regardless of the conditions in which children are held, detention has a profound and negative impact on child health and development. Even very short periods of detention can undermine the child's psychological and physical well-being and compromise cognitive development. Children held in detention are at risk of post-traumatic stress disorder, and may exhibit such symptoms as insomnia, nightmares and bed-wetting. Feelings of hopelessness and frustration can be manifested in acts of violence against themselves or others. Reports on the effect of detention on children have found higher rates of suicide, suicide attempts and self-harm, mental disorder and developmental problems, including severe attachment disorder. The threshold at which treatment or punishment may be classified as torture or ill-treatment is therefore lower in the case of children, and in particular in the case of children deprived of their liberty.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Health
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 34
- Paragraph text
- International standards require the establishment of a minimum age of criminal responsibility that reflects when a child has the adequate mental capacity and moral competence to be punished for crimes. In its general comment No. 10 (CRC/C/GC/10), the Committee on the Rights of the Child encouraged States parties to increase their lower minimum age of criminal responsibility to the age of 12 years as the absolute minimum age, and to continue to increase it to a higher age level. Nevertheless, many countries still maintain a minimum age of criminal responsibility well below 12 years.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Health
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 35
- Paragraph text
- States have an international obligation to put in place a dedicated legal system and law enforcement processes for children. All too often, criminal justice systems are designed for adults and incorporate none of the specific procedural safeguards required for children. In particular, adult criminal justice systems expose children to a range of sentences and disciplinary punishments aimed specifically at adults, without any rehabilitative component.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 36
- Paragraph text
- The imposition of the death penalty on children is forbidden under international law and has been accepted so universally as to reach the level of a jus cogens norm (A/67/279, para. 62).
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 37
- Paragraph text
- Similarly, life sentences without the possibility of release for children are expressly prohibited by international law and treaties, including article 37(a) of the Convention on the Rights of the Child. The Committee on the Rights of the Child, in its general comment No. 10 (CRC/C/GC/10), and the Human Rights Committee, in its general comment No. 21, confirmed that life imprisonment without the possibility of release is never an appropriate punishment for an offence committed by a juvenile offender. The vast majority of States have taken note of the international human rights requirements regarding life imprisonment of children without the possibility of release. Significantly, the United States of America is the only State in the world that still sentences children to life imprisonment without the opportunity for parole for the crime of homicide.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 38
- Paragraph text
- With regard to life imprisonment of children, the Human Rights Council, in its resolution 24/12, and the Committee on the Rights of the Child, in its general comment No. 10, urged States to ensure that no one is sentenced to life imprisonment for an offence committed by persons under 18 years of age.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 39
- Paragraph text
- Although the Convention on the Rights of the Child requires States to ensure that detention or imprisonment of children should only be used as a measure of last resort, in exceptional circumstances, for the shortest possible period of time and only if it is in the best interests of the child, in reality, detention is often used as the first response to perceived problems. During his country visits, the Special Rapporteur observed that, although alternative or non-custodial measures are provided by law, in a high percentage of cases, detention is the preferred option and not the last resort (see A/HRC/22/53/Add.3, para. 53).
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 40
- Paragraph text
- In many instances, the worst situations for children arise at the time of arrest by the police, and during transportation or subsequent questioning in police custody (see A/HRC/16/52/Add.5, para. 43 and A/HRC/22/53/Add.1, para. 73). During the period immediately following apprehension, children are at particularly high risk of physical, verbal and psychological violence, such as verbal abuse, threats and beatings, and they are too often not provided with information on their human rights and the allegations brought against them in a manner that they can understand. Following their arrest, children often do not have prompt and private access to legal assistance or notification of their parents or caregivers, which makes them even more vulnerable and subject to a higher risk of being subjected to torture or other ill-treatment.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Violence
- Person(s) affected
- Children
- Families
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 41
- Paragraph text
- Despite the international legal framework in place, the majority of children deprived of their liberty are held in pretrial detention, often for prolonged periods, and for minor offences, often in unsuitable premises. In many countries, the excessive use of pretrial detention leads to overcrowded facilities.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 42
- Paragraph text
- Many States continue to hold children and adults in the same facilities, in particular those in pretrial detention and police custody, but also during transportation or in the context of immigration detention. Moreover, the continuous trying and sentencing of children as adults and the lack of specialized juvenile facilities have resulted in numerous children being placed in adult prisons. Disciplinary and other administrative rules and procedures are often applied, regardless of child status.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Movement
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 43
- Paragraph text
- Detaining children and adults together will inevitably result in negative consequences for the children, who are five times as likely to be subjected to a substantiated incident of sexual violence, and are also much more likely to witness or experience other forms of violence, including physical harm by facility staff members. They are also more likely to commit suicide or engage in other forms of self-harm when housed in adult - rather than juvenile - facilities. Research also shows that imprisoning children with adults can result in increased recidivism and negative long-term consequences for children, their families and communities.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Violence
- Person(s) affected
- Children
- Families
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 44
- Paragraph text
- In many States, solitary confinement is still imposed on children as a disciplinary or "protective" measure. National legislation often contains provisions to permit children to be placed in solitary confinement. The permitted time frame and practices vary between days, weeks and even months. In accordance with views of the Committee against Torture, the Subcommittee on Prevention of Torture and the Committee on the Rights of the Child, the Special Rapporteur is of the view that the imposition of solitary confinement, of any duration, on children constitutes cruel, inhuman or degrading treatment or punishment or even torture (see A/66/268, paras. 77 and 86, and A/68/295, para. 61).
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 45
- Paragraph text
- During country visits, the Special Rapporteur regularly observes the practice of corporal punishment as a disciplinary measure for children in detention, including severe caning, flogging, beating with sticks and electric cords, beatings on the buttocks with wooden boards, and being forced to kneel for long periods with hands in the air (A/HRC/25/60/Add.1, paras. 64-65 and A/HRC/22/53/Add.2, para. 56). Some States still allow the use of corporal punishment as a criminal sentence for children. With regard to the jurisprudence of United Nations treaty bodies and the European Court, the mandate holder has found that any form of corporal punishment is contrary to the prohibition of torture and other cruel, inhuman or degrading treatment or punishment (see A/60/316 and A/67/279). He also noted that States cannot invoke provisions of domestic law to justify violations of the prohibition of corporal punishment.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 46
- Paragraph text
- Children are subjected to a range of adult punishments in detention, including physical and manual restraints, routine humiliation and degrading searches, and the indiscriminate use of mace, pepper spray and other harmful chemicals. During country visits, the Special Rapporteur has observed the use of psychotropic drugs for children in detention in order to maintain security in juvenile detention facilities (see A/HRC/22/53/Add.3, para. 52). In some instances, such forms of punishment (especially restraints) are adopted as a first resort rather than being used only in exceptional cases.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Health
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 47
- Paragraph text
- A large number of children deprived of their liberty show signs of mental health problems, or mental illnesses or psychological disorders, which are often exacerbated during their detention. Children in detention are prone to self-harm, including suicide, because of depression. In many instances, children who suffer from mental health problems have no access to mental health screening within the first hours of admission to a detention centre and do not receive adequate treatment, including psychosocial counselling during detention. Moreover, children showing signs of mental health problems are often held together with children who do not show such signs.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Health
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 48
- Paragraph text
- Girls deprived of their liberty are at a heightened risk of sexual violence, sexual exploitation and underage pregnancies while in detention. The risk of sexual abuse is greater when male guards supervise girls in detention. Girls deprived of their liberty have different needs not only to those of adults but also of boys. Girls in detention are often not only children but also carers, either as mothers or as siblings, and have specific health, hygiene and sanitary needs. Across the globe, girls are rarely kept separately from women in pretrial and post-conviction settings (see A/HRC/16/52/Add.3, para. 54). Similarly, the Special Rapporteur notes that lesbian, gay, bisexual, transgender and intersex children are at a heightened risk.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Gender
- Health
- Violence
- Person(s) affected
- Boys
- Children
- Girls
- LGBTQI+
- Women
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 49
- Paragraph text
- Children deprived of their liberty are often not allowed to maintain regular contact with their families and friends, because either they are denied contact as a form of punishment or are placed in facilities located far away from their homes and families. A lack of vocational, educational and recreational activities for children deprived of their liberty creates situations of risk of abuse and ill-treatment. When children spend most of their time confined in their cells, they may experience a lack of motivation and even depression, which in turn can leads to incidents of abuse and violence between children or with staff members. The Special Rapporteur wishes to point out that, while lack of activities is detrimental for any prisoner, it is especially harmful for children, who have a particular need for physical activity and intellectual stimulation. This is also true for children detained with their mothers in prison. During country visits, the Special Rapporteur has observed that women's section of prisons often show inadequate space for women with children and a lack of well-equipped recreation areas for children (see A/HRC/22/53/Add.2, para. 58).
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Person(s) affected
- Children
- Women
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 50
- Paragraph text
- The State's obligation to prevent torture applies not only to public officials, such as law enforcement agents, but also to medical doctors, health-care professionals and social workers, including those working in private hospitals, other institutions and detention centres (A/63/175, para. 51 and A/HRC/22/53, paras. 23-26).
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Health
- Person(s) affected
- All
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 51
- Paragraph text
- The Special Rapporteur has previously recognized that ill-treatment may occur in a diverse range of settings, even where the purpose or intention of the State's action or inaction was not to degrade, humiliate or punish the child. He notes that most instances of ill-treatment of children deprived of their liberty outside of the criminal justice system, such as children in administrative immigration detention or institutional settings, involve acts of omission rather than commission, such as emotional disengagement or unsanitary or unsafe conditions, and result from poor policies rather than from an intention to inflict suffering. Purely negligent conduct lacks the intent required under the prohibition of torture, but may constitute ill-treatment if it leads to pain and suffering of some severity (A/63/175, para. 49). This is the case when the suffering is severe and meets the minimum threshold under the prohibition against torture and other ill-treatment, when the State is, or should be, aware of the suffering, including when no appropriate treatment was offered, and when the State has failed to take all reasonable steps to protect the child's physical and mental integrity.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Health
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 52
- Paragraph text
- Private detention is often presented as a preferable alternative to forced criminal or health-related institutionalization of children with special needs, whether those needs be physical, mental or psychological. The Special Rapporteur notes that, because national law often does not regulate private detention centres, there is a gap in legal protections that may lead to rampant abuse.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Health
- Violence
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 53
- Paragraph text
- Special attention should be paid to children deprived of their liberty in health-care institutions (including hospitals, public and private clinics, hospices and institutions where healthcare is delivered). Children are detained in such settings primarily to treat psychiatric, psychosocial or intellectual disabilities, or drug dependence issues. Almost all States have legislation that permits the detention of children for psychiatric health purposes. Persons with disabilities are particularly affected by forced medical interventions, and continue to be exposed to unwarranted non-consensual medical practices (A/63/175, para. 40). During his country visits, the Special Rapporteur has observed that, in particular with regard to children with disabilities, "incapacity" is often presumed, which limits their ability to decide where to live and what treatment to receive, and may be taken as the basis of substitution of determination and decision-making by the child, or by parents, guardians, carers or public authorities. Structural inequalities, such as the power imbalance between medical doctors and patients, exacerbated by stigma and discrimination, result in children with disabilities being disproportionately vulnerable to having informed consent compromised (A/HRC/22/53, para. 29). In this context, the Committee on the Rights of Persons with Disabilities, in its general comment No. 1 (CRPD/C/GC/1), explained that involuntary psychiatric treatment is prohibited on the grounds that it violates the right to consent to medical treatment under article 12 of the Convention on the Rights of Persons with Disabilities and the absolute prohibition of torture and cruel, inhuman and degrading treatment (para. 42). The Committee on the Rights of the Child, in its general comment No. 12 (CRC/C/GC/12), stated that children should be provided with information about proposed treatments and their effects and outcomes, including in formats appropriate and accessible to children with disabilities (paras. 48 and 100).
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Health
- Person(s) affected
- Children
- Persons with disabilities
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 54
- Paragraph text
- The Special Rapporteur observes that children who use, or are suspected of using, drugs are commonly involuntarily confined in so-called rehabilitation centres. Children thus confined are compelled to undergo diverse interventions (A/HRC/22/53, para. 40), including painful withdrawal from drug dependence without adequate medical assistance, administration of unknown or experimental medications, State-sanctioned beatings, caning or whipping, forced labour, sexual abuse and intentional humiliation. Other reported abuses included "flogging therapy", "bread and water therapy", and electroshock resulting in seizures, all in the guise of rehabilitation. In some countries, a wide range of other marginalized groups, including street children and children with psychosocial disabilities, are reportedly detained in these centres.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Health
- Person(s) affected
- Children
- Persons with disabilities
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 55
- Paragraph text
- Similarly, the involuntary commitment of children with mental disabilities, including those who have long-term intellectual or sensory impairments, to psychiatric and social care institutions, psychiatric wards, prayer camps, secular and religious-based therapeutic boarding schools, boot camps, private residential treatment centres or traditional healing centres has been well documented. Such children may live their whole lives in such psychiatric or social care institutions (A/HRC/22/53, paras. 57 and 68). Article 14, paragraph 1 (b) of the Convention on the Rights of Persons with Disabilities unambiguously states that "the existence of a disability shall in no case justify a deprivation of liberty". The Committee on the Rights of Persons with Disabilities has found that legislation that allows detention in a mental health institution on the basis of a standard of danger to self or others infringes this provision. Indeed, the Committee has repeatedly urged States to ensure that no one is detained against their will in any kind of mental health facility. Furthermore, the Special Rapporteur has observed the continued use of solitary confinement and prolonged restraint of children with disabilities in psychiatric institutions. The environment of patient powerlessness and abusive treatment of children with disabilities in which restraint and seclusion are used can lead to other non-consensual treatment, such as forced medication and electroshock procedures (A/HRC/22/53, para. 63).
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Health
- Person(s) affected
- Children
- Persons with disabilities
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 56
- Paragraph text
- One of the most egregious forms of abuse in health and social care settings is unique to children. Numerous studies have documented that a child's healthy development depends on the child's ability to form emotional attachments to a consistent care-giver. Children need more than physical sustenance; they also require emotional companionship and attention to flourish. Unfortunately, this fundamental need for connection is consistently not met in many institutions, leading to self-abuse, including children banging their head against walls or poking their eyes. In reaction, care-givers use physical restraints as a long-term solution, or hold the children in cages or their beds, practices that have been linked to muscular atrophy and skeletal deformity.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Harmful Practices
- Health
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 57
- Paragraph text
- Another form of ill-treatment of children in health and social care detention settings is inappropriate medical care, including the use of psychoactive medications on children for punitive purposes, such as injected tranquilizers, which immobilize children for days, and forced labour in the guise of medical necessity. During one mission, the Special Rapporteur witnessed appalling conditions and ill-treatment of children with mental disabilities in so-called prayer camps, which are alternative residential facilities. He documented cases of shackling to the walls, floors or trees and forced fasting, in some cases on children with neurological problems (see A/HRC/25/60/Add.1, paras. 74-77).
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Health
- Person(s) affected
- Children
- Persons with disabilities
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 58
- Paragraph text
- Unsanitary and unsafe conditions may also lead to a violation of the prohibition of ill-treatment. The Special Rapporteur observes that overcrowding is present in many institutions, leading to severe constraints on institutional resources, shortages of adequate food, clean drinking water, bedding and medical care. Overcrowding also increases the risk of disease transmission and infection. Furthermore, adults and children are often not segregated in institutional facilities, leading to issues of exploitation.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Health
- Water & Sanitation
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 59
- Paragraph text
- States frequently detain children who are refugees, asylum seekers or irregular migrants for a number of reasons, such as health and security screening, to verify their identity or to facilitate their removal from the territory. Sometimes, children may be inadvertently detained because there is a failure to distinguish between child and adult migrants, such as when children are unable to prove their age. The Special Rapporteur has previously noted with concern that unaccompanied child migrants are systematically held in detention at police stations, border guard stations or migration detention centres instead of being held in reception centres, which are in practice often not numerous enough or are overcrowded (see A/HRC/16/52/Add.4, paras. 68-69). Most of the unaccompanied minors are not adequately informed about asylum procedures or their rights, do not have access to legal counsel or guardians, and are generally ignorant of the system. Furthermore, the procedure to identify minors and to assess their age and vulnerability appears to be completely inadequate, as many children reported being registered as adults (see A/HRC/16/52/Add.4, paras. 68-73 and CAT/C/USA/CO/3-5, para. 19).
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Movement
- Person(s) affected
- Children
- Persons on the move
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 60
- Paragraph text
- Many child migrants witness or suffer harsh physical abuse while detained. Reports indicate that children in immigration detention have been tied up or gagged, beaten with sticks, burned with cigarettes and given electric shocks, and that the use of solitary confinement of children in immigration detention is common around the globe. In other instances, migrant children have suffered from severe anxiety and mental harm after having witnessed sexual abuse and violence against other detainees. In some countries, encampment policies have led to the kidnapping, captivity and torture of child refugees. Child migrant detainees too often face lengthy detainment.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Movement
- Violence
- Person(s) affected
- Children
- Persons on the move
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 61
- Paragraph text
- In addition, many child migrants suffer appalling and inhuman conditions while detained including overcrowding, inappropriate food, insufficient access to drinking water, unsanitary conditions, lack of adequate medical attention, and irregular access to washing and sanitary facilities and to hygiene products, lack of appropriate accommodation and other basic necessities. In some cases, detention centres refuse to keep migrant children with their families also being detained, and have denied migrant children's right to communicate with their families. Such practices effectively isolate child detainees from social support groups.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Health
- Movement
- Water & Sanitation
- Person(s) affected
- Children
- Families
- Persons on the move
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 62
- Paragraph text
- According to the European Court of Human Rights, even short term detention of migrant children is a violation of the prohibition on torture and other ill-treatment, holding a child's vulnerability and best interests outweigh the Government's interest in halting illegal immigration. The Inter-American Court of Human Rights further noted that, when assessing the possibility to return, expel, deport, repatriate, reject at the border, or not to admit or in any way transfer or remove a child to a State, the best interests of the child must be determined, which also incorporate the component of adequate development and survival of the child.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Movement
- Person(s) affected
- Children
- Persons on the move
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 63
- Paragraph text
- An essential safeguard against torture and other forms of ill-treatment is the availability of multidisciplinary and qualified staff working in children's institutions. Inside the law enforcement, institution and migration systems, children are more vulnerable to human rights violations than adults because of the manner in which judicial and other officials deal with children.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Movement
- Person(s) affected
- Children
- Persons on the move
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 64
- Paragraph text
- A significant number of States lack an independent mechanism to monitor human rights violations not only in detention facilities but also in medical and social care institutions. Moreover, even when legislation exists to provide for the monitoring of such institutions, inadequate human and financial resources and weak legal enforcement mechanisms are no excuse for failure to prevent abuse.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Health
- Violence
- Person(s) affected
- All
- Persons on the move
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 65
- Paragraph text
- Article 25 of the Convention on the Rights of the Child provides for the right of a child who has been placed by the competent authorities for the purposes of care, protection or treatment of his or her physical or mental health to a periodic review of the treatment provided to the child and all other circumstances relevant to his or her placement. In this context, the Special Rapporteur recalls that the possibility of release should be realistic and regularly considered (CRC/C/GC/10, para. 77). He also observes that, in practice, many States fail to apply these rights. Acts of torture and other cruel, inhuman or degrading treatment or punishment are more widespread than they appear owing to the greater vulnerability of children and their lack of capacity to articulate complaints and seek redress (see A/HRC/25/35, paras. 13-17).
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Health
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 66
- Paragraph text
- Effective complaint procedures are an important safeguard against torture and other ill-treatment in all places of detention for children. According to article 37 (d) of the Convention on the Rights of the Child, children, including migrant children, have the right to prompt access to legal aid and other appropriate assistance, as well as the right to challenge the legality of the deprivation of their liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Movement
- Person(s) affected
- Children
- Persons on the move
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 67
- Paragraph text
- With regard to migrant children, authorities routinely impede their access to lawyers, non-governmental organizations, service providers, interpreters and other sources of information and protection. Furthermore, children often never meet with their appointed guardian because they are deported before their representative arrives. In some cases, the report of a child's ill-treatment is routinely ignored by the official guardians. States have similarly failed to implement a legal right to representation for children detained in health-care settings. Even when States provide a legal right to review, it generally does not cover children placed with parental consent.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Health
- Movement
- Person(s) affected
- Children
- Persons on the move
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 68
- Paragraph text
- In January 2014, the Committee on the Rights of the Child, at its sixty-fifth session, adopted a recommendation that the General Assembly request the Secretary-General to conduct an in-depth international study on the issue of children deprived of liberty (A/69/41, annex II). The Special Rapporteur therefore welcomes General Assembly resolution 69/157, in which the Assembly invited the Secretary-General to commission an in-depth global study on children deprived of liberty.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 69
- Paragraph text
- Owing to their unique physiological and psychological needs, which render them particularly sensitive to deprivation and treatment that otherwise may not constitute torture, children are more vulnerable to ill-treatment and torture than adults. The detention of children, including pretrial and post-trial incarceration as well as institutionalisation and administrative immigration detention, is inextricably linked - in fact if not in law - with the ill-treatment of children, owing to the particularly vulnerable situation in which they have been placed that exposes them to numerous types of risk. Moreover, the response to address the key issues and causes is often insufficient.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Health
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 70
- Paragraph text
- In determining the seriousness of acts that may constitute ill-treatment or torture, due consideration must be given to physical and mental effects and the age of the victim. In the case of children, higher standards must be applied to classify treatment and punishment as cruel, inhuman or degrading. In addition, the particular vulnerability of children imposes a heightened obligation of due diligence on States to take additional measures to ensure their human rights to life, health, dignity and physical and mental integrity.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Health
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 71
- Paragraph text
- There is widespread agreement among experts that the institutionalization of children contributes to physical underdevelopment, abnormalities in brain development, reduced intellectual abilities and development, delays in speech and language development, and diminished social skills. Inappropriate conditions of detention exacerbate the harmful effects of institutionalization on children. The Special Rapporteur observes that one of the most important sources of ill-treatment of children in those institutions is the lack of basic resources and proper government oversight.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Health
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 72
- Paragraph text
- The deprivation of liberty of children is intended to be an ultima ratio measure, to be used only for the shortest possible period of time, only if is in the best interests of the child, and limited to exceptional cases. Failure to recognize or apply these safeguards increases the risk of children being subjected to torture or other ill-treatment, and implicates State responsibility. Therefore, States should, to the greatest extent possible, and always using the least restrictive means necessary, adopt alternatives to detention that fulfil the best interests of the child and the obligation to prevent torture or other ill-treatment of children, together with their rights to liberty and family life, through legislation, policies and practices that allow children to remain with family members or guardians in a non-custodial, community-based context. Alternatives to detention must be given priority in order to prevent torture and the ill-treatment of children. This includes access to counselling, probation and community services, including mediation services and restorative justice. Furthermore, if circumstances change and the reclusion of children is no longer required, States are required to release them, even when they have not completed their sentences.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 73
- Paragraph text
- With regard to children deprived of their liberty within the context of the criminal justice system, the Special Rapporteur recalls that children should be charged, tried and sentenced within a State's system of juvenile justice, affording them adequate forms of protection, and never within the adult criminal justice systems. In addition, laws, policies and practices that allow children to be subjected to adult sentences are inherently cruel, inhuman or degrading because they fail to consider any of the special measures of protection or safeguards that international law requires for children. Children should never be treated as if they were adults. Because children are less emotionally and psychologically developed, they are less culpable for their actions and their sentencing should reflect the principle of rehabilitation and reintegration.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 74
- Paragraph text
- In this context, the Special Rapporteur recalls that the death penalty for children amounts to a violation of the prohibition of torture and other ill-treatment. Other punishments considered grossly disproportionate also amount to cruel, inhuman or degrading treatment or punishment. Life imprisonment and lengthy sentences, such as consecutive sentencing, are grossly disproportionate and therefore cruel, inhuman or degrading when imposed on a child. Life sentences or sentences of an extreme length have a disproportionate impact on children and cause physical and psychological harm that amounts to cruel, inhuman or degrading punishment. Similarly, the Special Rapporteur finds that mandatory sentences for children are similarly incompatible with the State's obligation regarding children in conflict with the law and the prohibition of cruel, inhuman or degrading punishment. Mandatory minimum sentences may result in disproportionate punishments that are often overly retributive in relation to the crimes committed, particularly in relation to the child's individual circumstances and the opportunity for rehabilitation. In the light of the unique vulnerability of children, including the risk of torture or ill-treatment in detention and States' obligation of due diligence to afford children heightened measures of protection against torture and other forms of ill-treatment, children must be subject to sentences that promote rehabilitation and re-entry into society.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 75
- Paragraph text
- The Special Rapporteur believe that there should be a formal obligation to notify a relative or another adult trusted by the child about his or her detention regardless of whether the child has so requested, except if this would not be in the best interests of the child. Parents or adults trusted by the child should furthermore be allowed to be present with the child during interrogation and any court appearances. An essential issue is the manner in which children are questioned. Interrogation should be age-sensitive and individualized, and undertaken by authorities that are skilled in interviewing children. Video recording should be given due consideration in certain circumstances, to avoid causing distress to children because of repeated questioning, and numerous visits to courts. Children should also have immediate access to a lawyer and a health professional. A specific information sheet setting out the above-mentioned safeguards should be given to all children taken into custody immediately upon their arrival at a law enforcement establishment, and this information should be verbally explained to children in terms that they understand.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Health
- Person(s) affected
- Children
- Families
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 76
- Paragraph text
- Children should be appropriately separated in detention, including but not limited to children in need of care and those in conflict with the law, children awaiting trial and convicted children, boys and girls, younger children and older children, and children with physical and mental disabilities and those without. Children detained under criminal legislation should never be detained together with adult detainees. The Special Rapporteur also notes that the permitted exception to the separation of children from adults provided for in article 37 (c) of the Convention on the Rights of the Child should be interpreted sensu stricto. The best interests of the child should not be defined in accordance to the convenience of the State. Children in conflict with the law should be held in detention centres specifically designed for persons under the age of 18 years, offering a non-prison-like environment and regimes tailored to their needs and run by specialized staff, trained in dealing with children. Such facilities should offer ready access to natural light and adequate ventilation, access to sanitary facilities that are hygienic and respect privacy and, in principle, accommodation in individual bedrooms. Large dormitories should be avoided.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Boys
- Children
- Girls
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 77
- Paragraph text
- An important safeguard against torture and other forms of ill-treatment is the support given to children in detention to maintain contact with parents and family through telephone, electronic or other correspondence, and regular visits at all times. Children should be placed in a facility that is as close as possible to the place of residence of their family. Any exceptions to this requirement should be clearly described in the law and not be left to the discretion of the competent authorities. Moreover, children should be given permission to leave detention facilities for a visit to their home and family, and for educational, vocational or other important reasons. The child's contact with the outside world is an integral part of the human right to humane treatment, and should never be denied as a disciplinary measure.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- Children
- Families
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 78
- Paragraph text
- Children in detention should be provided throughout the day with a full programme of education, sport, vocational training, recreation and other purposeful out-of-cell activities. This includes physical exercise for at least two hours every day in the open air, and preferably for a considerably longer time. Girls should under no circumstances receive less care, protection, assistance and training, including equal access to sport and recreation.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Education
- Equality & Inclusion
- Person(s) affected
- Children
- Girls
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 79
- Paragraph text
- The Special Rapporteur recalls that detention and forced labour programmes for children who use drugs are not a legitimate substitute for evidence-based measures, such as substitution therapy, psychological intervention and other forms of treatment given with full, informed consent (A/65/255, para. 31). Drug dependence as a "multi-factoral health disorder" requires a health response rather than recourse to detention.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Health
- Violence
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 80
- Paragraph text
- Within the context of administrative immigration enforcement, it is now clear that the deprivation of liberty of children based on their or their parents' migration status is never in the best interests of the child, exceeds the requirement of necessity, becomes grossly disproportionate and may constitute cruel, inhuman or degrading treatment of migrant children. Following the advisory opinion of the Inter-American Court of Human Rights on the rights and guarantees of children in the context of migration and/or in need of international protection in 2014, the Special Rapporteur recalls the different procedural purposes between immigration and criminal proceedings, and that, in the words of the Court, "the offenses concerning the entry or stay in one country may not, under any circumstances, have the same or similar consequences to those derived from the commission of a crime." The Special Rapporteur therefore concludes that the principle of ultima ratio that applies to juvenile criminal justice is not applicable to immigration proceedings. The deprivation of liberty of children based exclusively on immigration-related reasons exceeds the requirement of necessity because the measure is not absolutely essential to ensure the appearance of children at immigration proceedings or to implement a deportation order. Deprivation of liberty in this context can never be construed as a measure that complies with the child`s best interests. Immigration detention practices across the globe, whether de jure or de facto, put children at risk of cruel, inhuman or degrading treatment or punishment. Furthermore, the detention of children who migrate to escape exploitation and abuse contravenes the duty of the State to promote the physical and psychological recovery of child victims in an appropriate environment. Therefore, States should, expeditiously and completely, cease the detention of children, with or without their parents, on the basis of their immigration status. States should make clear in their legislation, policies and practices that the principle of the best interests of the child takes priority over migration policy and other administrative considerations. Also, States should appoint a guardian or adviser as soon as the unaccompanied or separated child is identified, and maintain such guardianship arrangements until the child has either reached the age of majority or has permanently left the territory and/or jurisdiction of the State (A/HRC/20/24, para. 41). While the Special Rapporteur acknowledges that, in certain circumstances it is possible for States to place children in a shelter or other accommodation when it is based on the purpose of child care, protection and support, this should not become a proxy for expanded unnecessary restrictions to the liberty of child migrants and families. States are required to favour measures that promote the care and well-being of the child rather than the deprivation of liberty. Facilities that grant accommodation for migrant children should have all the material conditions necessary and provide an adequate regime to ensure comprehensive protection from ill-treatment and torture, and allow for their holistic development. Migrant children should be separated from children who have been accused or convicted of criminal offences and from adults. The Special Rapporteur notes, however, that separating child migrants from unrelated adults can sometimes itself result in harm by depriving children of important interactions; ample opportunities for broader human interaction and physical activity must therefore be given to unaccompanied migrant children. When children are accompanied, the need to keep the family together is a not sufficient reason to legitimize or justify the deprivation of liberty of a child, given the prejudicial effects that such measures have on the emotional development and physical well-being of children. The Special Rapporteur shares the view of the Inter-American Court of Human
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Movement
- Person(s) affected
- Children
- Families
- Persons on the move
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 81
- Paragraph text
- The Special Rapporteur recommends that States adopt child-friendly administrative and criminal court procedures and train police officers, border guards, detention staff, judges and others who may encounter children deprived of their liberty in child protection principles and a better understanding of the vulnerabilities of children to human rights violations, such as torture and other forms of ill-treatment. Special mention should be made of girls, who are particularly vulnerable, and to special groups of children, such as minorities, disabled children and migrants.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Movement
- Social & Cultural Rights
- Person(s) affected
- Children
- Girls
- Persons on the move
- Persons with disabilities
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 82
- Paragraph text
- Children deprived of their liberty and their parents or legal representatives should have avenues of complaint open to them in administrative systems, and should be entitled to address complaints confidentially to an independent authority. Upon admission, children should be given information on lodging a complaint, including the contact details of the authorities competent to receive complaints, as well as the address of any services that provide legal assistance. In this context, the Special Rapporteur welcomes the establishment of independent, local, socio-legal defence centres that provide children with the effective opportunity to have access to justice and subsequently to obtain remedies and advocate for systematic training in children's rights for professionals.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Children
- Families
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 83
- Paragraph text
- Regular and independent monitoring of places where children are deprived of their liberty is a key factor in preventing torture and other forms of ill-treatment. Monitoring should be conducted by an independent body, such as a visiting committee, a judge, the children's ombudsman or the national preventive mechanisms with authority to receive and act on complaints and to assess whether establishments are operating in accordance with the requirements of national and international standards. Independent monitoring mechanisms should draw on professional knowledge in a number of fields, including social work, children's rights, child psychology and psychiatry, in order to address the multiple vulnerabilities of children deprived of their liberty and to understand the specific normative framework and overall system of child protection.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 84a
- Paragraph text
- [With regard to legislation, the Special Rapporteur calls upon all States:] To investigate all allegations of torture or other ill-treatment of children deprived of their liberty in accordance with the absolute prohibition of torture and other cruel, inhuman or degrading treatment or punishment, as codified in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child, to prosecute and punish those responsible, and to act in accordance with the heightened obligation of due diligence of States to prevent the torture and ill-treatment of children;
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 84b
- Paragraph text
- [With regard to legislation, the Special Rapporteur calls upon all States:] To expedite the ratification of the Convention of the Rights of the Child and the optional protocols thereto, and the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- All
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 84c
- Paragraph text
- [With regard to legislation, the Special Rapporteur calls upon all States:] To adhere to the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, the United Nations Rules for the Protection of Juveniles Deprived of their Liberty and the United Nations Guidelines for the Prevention of Juvenile Delinquency.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- Adolescents
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 85a
- Paragraph text
- [With regard to the vulnerability of children deprived of their liberty and policy reform, the Special Rapporteur calls upon all States:] To ensure that deprivation of liberty is used only as a measure of last resort only in exceptional circumstances and only if it is in the best interests of the child;
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 85b
- Paragraph text
- [With regard to the vulnerability of children deprived of their liberty and policy reform, the Special Rapporteur calls upon all States:] To ensure that child-appropriate age determination procedures are in place, and that the person is presumed to be under 18 years of age unless and until proven otherwise;
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 85c
- Paragraph text
- [With regard to the vulnerability of children deprived of their liberty and policy reform, the Special Rapporteur calls upon all States:] To promote preventive mechanisms, such as diversion and early identification and screening mechanisms, and to provide for a variety of non-custodial, community-based alternative measures to the deprivation of liberty;
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Social & Cultural Rights
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 85d
- Paragraph text
- [With regard to the vulnerability of children deprived of their liberty and policy reform, the Special Rapporteur calls upon all States:] To ensure that paediatricians and child psychologists with trauma-informed training are available on a regular basis to all children in detention, and to establish specialized medical screenings inside places of deprivation of liberty to detect cases of torture and ill-treatment, including access to forensic evaluation;
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Health
- Humanitarian
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 85e
- Paragraph text
- [With regard to the vulnerability of children deprived of their liberty and policy reform, the Special Rapporteur calls upon all States:] To provide mandatory training to all persons dealing with children, including training on the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the detection, documentation and prevention of torture and ill-treatment;
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 85f
- Paragraph text
- [With regard to the vulnerability of children deprived of their liberty and policy reform, the Special Rapporteur calls upon all States:] To ensure that children in conflict with the law are charged, tried and sentenced within a State's juvenile justice system, never within the adult criminal justice system;
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 85g
- Paragraph text
- [With regard to the vulnerability of children deprived of their liberty and policy reform, the Special Rapporteur calls upon all States:] To set the minimum age of criminal responsibility to no lower than 12 years, and to consider progressively raising it;
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 85h
- Paragraph text
- [With regard to the vulnerability of children deprived of their liberty and policy reform, the Special Rapporteur calls upon all States:] To prohibit laws, policies and practices that allow children to be subjected to adult sentences and punishments, and to prohibit the death penalty and life imprisonment in all its forms;
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 85i
- Paragraph text
- [With regard to the vulnerability of children deprived of their liberty and policy reform, the Special Rapporteur calls upon all States:] To provide additional training to the judiciary so that bail, probation and alternative measures to detention are considered;
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 85j
- Paragraph text
- [With regard to the vulnerability of children deprived of their liberty and policy reform, the Special Rapporteur calls upon all States:] To establish clear guidelines for law enforcement agencies dealing with children; in particular, not to detain children in law enforcement establishments for more than 24 hours; to establish a formal obligation to notify a relative or caregiver about his or her detention regardless of whether the child requests that this be done, except if not in the bests interest of the child; to ensure access to a lawyer and a medical doctor; and never to subject children to police questioning without the presence of a lawyer and, in principle, his or her caregiver;
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 85k
- Paragraph text
- [With regard to the vulnerability of children deprived of their liberty and policy reform, the Special Rapporteur calls upon all States:] Not to detain children in law enforcement establishments for more than 24 hours, and only in child-friendly environments;
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 85l
- Paragraph text
- [With regard to the vulnerability of children deprived of their liberty and policy reform, the Special Rapporteur calls upon all States:] To amend legislation to require a presumption of community living, with support, as the favoured policy, for children with disabilities;
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Social & Cultural Rights
- Person(s) affected
- Children
- Persons with disabilities
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 85m
- Paragraph text
- [With regard to the vulnerability of children deprived of their liberty and policy reform, the Special Rapporteur calls upon all States:] To ensure that immigration detention is never used as a penalty or punishment of migrant children, including for irregular entry or presence, and to provide alternative measures to detention that promote the care and well-being of the child;
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Movement
- Person(s) affected
- Children
- Persons on the move
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 85n
- Paragraph text
- [With regard to the vulnerability of children deprived of their liberty and policy reform, the Special Rapporteur calls upon all States:] To prohibit the use of immigration detention as a method of control or deterrence for migrant children;
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Movement
- Person(s) affected
- Children
- Persons on the move
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 85o
- Paragraph text
- [With regard to the vulnerability of children deprived of their liberty and policy reform, the Special Rapporteur calls upon all States:] To ensure that unaccompanied migrant children are immediately provided with guardianship arrangements;
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Movement
- Person(s) affected
- Children
- Persons on the move
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 85p
- Paragraph text
- [With regard to the vulnerability of children deprived of their liberty and policy reform, the Special Rapporteur calls upon all States:] To take into consideration any trauma or exposure to torture or other forms of ill-treatment that child migrants have experienced prior to being detained;
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Health
- Humanitarian
- Movement
- Person(s) affected
- Children
- Persons on the move
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 85q
- Paragraph text
- [With regard to the vulnerability of children deprived of their liberty and policy reform, the Special Rapporteur calls upon all States:] To establish appropriate and confidential complaint mechanisms for all children deprived of their liberty, to provide all necessary support, including legal aid, information, representation and assistance, to guarantee access to justice for children who have been tortured or ill-treated while deprived of their liberty, and to ensure the safety and security of all children who file a complaint;
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 85r
- Paragraph text
- [With regard to the vulnerability of children deprived of their liberty and policy reform, the Special Rapporteur calls upon all States:] To establish independent monitoring mechanisms at all places of deprivation of liberty, including places run by private actors, through regular and unannounced visits, and to include civil society organizations in the monitoring of places of deprivation of liberty;
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 85s
- Paragraph text
- [With regard to the vulnerability of children deprived of their liberty and policy reform, the Special Rapporteur calls upon all States:] To transfer the oversight of all places of deprivation of liberty of children from justice, law enforcement or border management authorities to those responsible for child protection;
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 85t
- Paragraph text
- [With regard to the vulnerability of children deprived of their liberty and policy reform, the Special Rapporteur calls upon all States:] To collect quantitative and qualitative data on of children deprived of their liberty, and to elaborate and publish the State's plans for children deprived of liberty;
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 85u
- Paragraph text
- [With regard to the vulnerability of children deprived of their liberty and policy reform, the Special Rapporteur calls upon all States:] To support the global study on children deprived of their liberty, prepared pursuant to General Assembly resolution 69/157, and the appointment of an independent expert to lead the study.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 86a
- Paragraph text
- [With regard to conditions during detention, the Special Rapporteur calls upon all States:] To separate children and adults in all places of detention and, when in the best interests of the child, to hold children and adults together during daytime, and only under strict supervision;
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 86b
- Paragraph text
- [With regard to conditions during detention, the Special Rapporteur calls upon all States:] To consider case-by-case assessment to decide whether it is appropriate for a particular inmate to be transferred to an adult institution after reaching the age of majority;
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 86c
- Paragraph text
- [With regard to conditions during detention, the Special Rapporteur calls upon all States:] To provide children deprived of their liberty with appropriate nutrition, health and other basic services, including ready access to natural light and adequate ventilation, access to sanitary facilities that are hygienic and respect privacy and, in principle, accommodation in individual bedrooms;
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Health
- Social & Cultural Rights
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 86d
- Paragraph text
- [With regard to conditions during detention, the Special Rapporteur calls upon all States:] To prohibit solitary confinement of any duration and for any purpose;
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 86e
- Paragraph text
- [With regard to conditions during detention, the Special Rapporteur calls upon all States:] To prohibit corporal punishment;
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 86f
- Paragraph text
- [With regard to conditions during detention, the Special Rapporteur calls upon all States:] To use restraints or force only when the child poses an imminent threat of injury to himself or herself or others, only for a limited period of time and only when all other means of control have been exhausted, and not to perform strip searches without reasonable suspicion;
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 86g
- Paragraph text
- [With regard to conditions during detention, the Special Rapporteur calls upon all States:] To respond to the specific needs of groups of children that are even more vulnerable to ill-treatment or torture, such as girls, lesbian, gay, bisexual, transgender and intersex children, and children with disabilities;
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Gender
- Health
- Person(s) affected
- Children
- Girls
- LGBTQI+
- Persons with disabilities
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 86h
- Paragraph text
- [With regard to conditions during detention, the Special Rapporteur calls upon all States:] To facilitate contact to the outside world, in particular with families and legal representatives;
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- Families
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 86i
- Paragraph text
- [With regard to conditions during detention, the Special Rapporteur calls upon all States:] To provide educational, vocational and recreational age-appropriate opportunities and green spaces for children;
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Education
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 86j
- Paragraph text
- [With regard to conditions during detention, the Special Rapporteur calls upon all States:] To maintain an individualized case-management file for each child in detention (such as information on education and medical history), subject to careful data protection and privacy protection, including digital privacy, to ensure that the file is shared only with staff that requires such information.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Education
- Governance & Rule of Law
- Person(s) affected
- Children
- Year
- 2015
Paragraph
Children deprived of their liberty from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2015, para. 86k
- Paragraph text
- [With regard to conditions during detention, the Special Rapporteur calls upon all States:] To ensure appropriate resources and staffing for all places of deprivation of liberty.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- Persons on the move
- Year
- 2015
Paragraph
Commissions of inquiry
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Legal status
- Non-negotiated soft law
- Document type
- Special Procedures' report
- Year
- 2012
- Document code
- A/HRC/19/61
Document
Commissions of inquiry 2012, para. 19
- Paragraph text
- In the international human rights context, commissions of inquiry are independent investigative commissions created in response to human rights violations including, but not limited to, torture, genocide, extrajudicial killings, disappearances and incidents involving multiple or high-profile killings (A/HRC/8/3, para. 12). Most commissions of inquiry are established at the initiative of national Government authorities. International experts may be part of their composition. In the present report, commissions of inquiry are defined as national commissions of inquiry and truth commissions, as well as investigations undertaken by national human rights institutions. The quest for accountability and victims' rights are common denominators for commissions of inquiry and truth commissions. While a commission of inquiry is likely to be established at the height of violence, a truth commission may only be established once a conflict is over. Both national and international commissions of inquiry often result from concerted demands by civil society or the international community. International commissions of inquiry tend, however, to have comparatively briefer temporal mandates which seek to identify patterns of violations during a protracted period of armed conflict.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Violence
- Person(s) affected
- N.A.
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 20
- Paragraph text
- Generally speaking, the scope of a commission's investigation is limited temporally and/or geographically, and is often restricted to the investigation of a particular event or series of events. In an effort by the State to prevent future violations or to strengthen the criminal justice system, a commission of inquiry may also be given a broader mandate to report on the causes of the violation and to propose recommendations for institutional reform and recommend reparations to victims.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- All
- N.A.
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 21
- Paragraph text
- Today, commissions of inquiry have taken on a central role in the effort to address patterns and practices of torture and other cruel, inhuman or degrading treatment or punishment around the world.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Violence
- Person(s) affected
- All
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 22
- Paragraph text
- The Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Istanbul Protocol) provides comprehensive guidance on the relevant international legal standards and ethical obligations for investigative procedures, interviews and collection of both physical and psychological evidence of torture, including a section on commissions of inquiry into torture and other forms of ill-treatment. In addition, the updated set of principles for the protection and promotion of human rights through action to combat impunity contains eight principles specific to commissions of inquiry. However, the circumstances under which commissions of inquiry are appropriate, and the ways in which they may provide unique benefits, remain little discussed.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Violence
- Person(s) affected
- N.A.
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 23
- Paragraph text
- The purpose of the present report is to deepen the international community's dialogue on commissions of inquiry and to offer guidance on when such commissions should be created by States in response to patterns or practices of torture and other forms of ill-treatment. When used correctly, a commission of inquiry may be a powerful tool in uncovering and bringing an end to patterns of violations; taking first steps in addressing victims' right to know the truth and identifying reparation measures in consultation with victims; ensuring accountability of State institutions and compliance with international human rights law; and promoting democratic, citizen-driven participation in human rights monitoring. Additionally, commissions of inquiry can play an integral role in facilitating the formal investigation of current systems or legacies of torture and other forms of ill-treatment, and pave the way to effective and fair prosecutions. A wealth of experience has been acquired from commissions of inquiry established within national jurisdictions as well as by the international community in situations in which the discovery and disclosure of the truth is deemed essential to the preservation or restoration of peace and security of nations. Lessons can be drawn from these experiences on what factors lead to successful or unsuccessful commissions of inquiry.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Violence
- Person(s) affected
- All
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 24
- Paragraph text
- For the above reason, another purpose of the present report is to generate further conversation about the standards that apply to the establishment and conduct of commissions of inquiry, and the relationship between commissions of inquiry and the fulfilment by a State of its international legal obligations with regard to torture. Such obligations include the obligation to investigate and prosecute torture and other forms of ill-treatment, and to provide effective remedies to victims of past violations, including reparation for the harm suffered and to prevent its reoccurrence.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 25
- Paragraph text
- The principal objective generally pursued by commissions of inquiry is to discover, clarify and formally acknowledge the causes and consequences of past violations in order to establish accountability. In this capacity, commissions of inquiry are fact-finding mechanisms that aim to establish an accurate record of the past by clarifying and deepening the public understanding of certain events or a particular period of time. This objective is met by means of numerous interviews and/or providing a venue for the public testimony of a broad array of actors, including victims, witnesses and Government officials. The resulting bolstered historical record allows for a more detailed account of patterns of violence, identifies where safeguards are lacking against torture and other forms of ill-treatment, opens space for public dialogue that may not have previously existed and corrects public misperceptions about certain events or a particular time period. Effective commissions of inquiry may aid in the establishment of accountability by paving the way for an effective strategy to prosecute perpetrators.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Violence
- Person(s) affected
- All
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 26
- Paragraph text
- Indeed, the process of achieving accountability can be aided by the work of a commission of inquiry where the information and names collected by the commission are shared with prosecuting authorities. While evidence collected by a commission of inquiry is often inadmissible in a court of law owing to the lower standards of evidence used by commissions to encourage broad participation, such information may be used as background information and provide further evidentiary leads.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 26a
- Paragraph text
- [Commissions of inquiry may also be designed to address other objectives, including:] To contribute to accountability for perpetrators;
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- N.A.
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 26b
- Paragraph text
- [Commissions of inquiry may also be designed to address other objectives, including:] To respond to the needs of victims;
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- N.A.
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 26c
- Paragraph text
- [Commissions of inquiry may also be designed to address other objectives, including:] To identify institutional responsibility and propose institutional, legal and personnel reforms;
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 26d
- Paragraph text
- [Commissions of inquiry may also be designed to address other objectives, including:] To promote reconciliation.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Humanitarian
- Person(s) affected
- N.A.
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 27
- Paragraph text
- When used by States, a commission of inquiry can serve as a valuable tool in addressing the State's duty under international human rights law to investigate and hold an independent inquiry into torture, deaths (for example, in the case of extrajudicial executions) and other atrocities (A/HRC/8/3, para. 12).
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Violence
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 28
- Paragraph text
- Although commissions of inquiry can vary in their origin and mandate, there are three characteristics that make them an effective and unique tool: they are generally ad hoc, autonomous and independent, as well as being victim-centred, therefore allowing greater and active participation of victims in the process of establishing facts and identifying the priority elements that comprise reparations.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 29
- Paragraph text
- For some victims and others, the importance of public truth-telling is not only that it reveals new information, but also provides a forum that officially acknowledges facts already known. Scholars in the field of transitional justice have emphasized that the importance of official acknowledgement of the facts is proportional to the extent to which the facts were previously hidden or disputed; the more facts are hidden or disputed, the greater the importance and significance of a correct and more complete official statement of the historical record.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Person(s) affected
- All
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 30
- Paragraph text
- Commissions of inquiry may satisfy some of the needs of victims for adequate healing and remedy by providing them with a public venue to tell their stories. In this context, commissions of inquiry may also aid in providing closure for family members of victims. Generally speaking, commissions of inquiry also deliver their findings in a timely manner, enhancing the victim-centred approach of this mechanism, especially when compared with judicial proceedings that ordinarily take much longer.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Health
- Person(s) affected
- Families
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 31
- Paragraph text
- Commissions of inquiry may be established in the aftermath of major incidents where there are concerns about the ability of investigative bodies to uncover promptly, thoroughly and impartially the root causes of certain large-scale or politically motivated crimes or systemic violations. In these situations. As pointed out by a previous mandate holder, State authorities that would normally be relied upon to investigate and prosecute are reluctant or unlikely to do so adequately.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 32
- Paragraph text
- The independent structure and mandate of commissions of inquiry may also make them well suited for identifying institutional responsibility and proposing reforms. Due to the numerous sources of evidence and facts submitted to commissions of inquiry, they are often able to pinpoint the failure of particular policies and detect systemic shortcomings or practices of certain Government agencies. Lastly, commissions of inquiry can aid in identifying measures to promote reconciliation within divided societies by directly confronting past violations.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- N.A.
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 33
- Paragraph text
- Commissions of inquiry are particularly useful where there is a lack of public information about a specific event or issue, such as when, for reasons of national security or intelligence, certain information is secret or classified. Under these circumstances, in order to respect the principles of constructive and meaningful participation of victims in establishing the facts, truth-seeking and holding perpetrators accountable, it is essential to ensure that a victim's right to effective investigation and redress is secured. In this respect, commissions of inquiry can help to maximize the disclosure of relevant information into the public domain. Where information is received in camera, a commission of inquiry may submit an excerpt or summary of that information to the appropriate judicial authority to ensure that a State's assertion that certain information is privileged is subject to the highest level of scrutiny.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 34
- Paragraph text
- Commissions of inquiry into torture and other forms of ill-treatment may be traced back at least to the practice of ad hoc public inquiries or royal inquiries into a defined issue in the United Kingdom in the eleventh century, and subsequently in other Commonwealth countries. In the nineteenth and twentieth centuries, public inquiries became prolific in Australia, Canada, New Zealand and the United Kingdom of Great Britain and Northern Ireland. The inquiries were appointed to advise the Government on a wide range of public policy issues, allegations of wrongdoing by Government officials and investigation into the causes of major disasters. Many other States, including Argentina, Brazil, Chile, Kenya, Morocco, Sierra Leone, South Africa, Sweden and the United States of America, have also historically or recently established commissions of inquiry with prescribed membership or given national human rights institutions the mandate to undertake inquires more systematically in order to investigate specific crimes or events.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- N.A.
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 35
- Paragraph text
- In general, it should be seen as a positive development if States undertake to establish a commission of inquiry in response to alleged violations, since States are accountable to the international community for their solemnly acquired obligations. Some States may, however, establish a commission to give the impression that there is a serious inquiry under way so that the international community is less likely to take action. It is appropriate to presume good faith on the part of the State that establishes a commission of inquiry, but ultimately that good faith should be tested in the results of the exercise.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 36
- Paragraph text
- There are also examples of commissions of inquiry that have had limited success owing to other factors. In 2009, the Government of Sri Lanka dissolved the Presidential Commission of Inquiry, established to look into serious violations of human rights committed since 2006. The Commission was unable to complete its mandate as no extensions were granted owing to a lack of resources and political will. The final report of the truth and reconciliation commission in Liberia received criticism that it was poorly drafted, lacked transparent explanation of the evidence on which it was based and contained inconsistent policy recommendations. The law that established the truth and reconciliation commission in Indonesia in 2005 was struck down by the Constitutional Court on the grounds that the prerequisite of granting amnesties to perpetrators violated victims' rights as protected by the Constitution of Indonesia. The truth and reconciliation commission established in the Democratic Republic of the Congo in 2003 suffered from a number of critical flaws in its structure, including, most prominently, a lack of transparency in the selection of the commissioners, who included individuals with ties to those implicated in the crimes to be investigated.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- N.A.
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 37
- Paragraph text
- In recent years, the United Nations has appointed non-judicial commissions of inquiry that have taken a variety of forms. Such commissions were established by the Security Council in the case of, for example, Darfur (resolution 1564 (2004)) and Lebanon (resolutions 1595 (2005), 1636 (2005) and 1644 (2005)); and by the Secretary-General in the case of, for instance, Côte d'Ivoire, Timor-Leste (resolution 1690 (2006)), Guinea and Pakistan. The commissions of inquiry had prescribed terms of reference that focused on violations of human rights and humanitarian law.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- N.A.
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 38
- Paragraph text
- The "Arab spring" uprisings and the violent repression that followed have also been the subject of several recent commissions of inquiry established by the Human Rights Council. For example, in its resolution S-15/1, the Council established an independent commission of inquiry, to investigate alleged violations of international human rights law in the Libyan Arab Jamahiriya, establish facts and identify those responsible, make recommendations on accountability measures. The Council, in its resolution S-16/1, established an independent international commission of inquiry to investigate alleged violations of international human rights law in the Syrian Arab Republic since March 2011.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- N.A.
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 39
- Paragraph text
- The Human Rights Council also mandated a fact-finding mission on the Gaza conflict, in 2009, and a fact-finding mission for the Syrian Arab Republic, in 2012.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 40
- Paragraph text
- The Council of Europe has set up commissions of inquiry with a variety of mandates, under the authority of various bodies. In 2006, a 46-member European Parliament inquiry was established to investigate the alleged use of European countries by the Central Intelligence Agency of the United States for the transportation and illegal detention of prisoners. In a speech before the European Parliament in 2009, the international law expert Antonio Cassese called for the establishment of a permanent commission of inquiry within Europe to facilitate expeditious investigations into whether torture or other international crimes had been perpetrated.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Persons on the move
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 41
- Paragraph text
- Several contemporary national commissions of inquiry have been established to examine issues concerning State secrets and complicity in torture in the aftermath of the terrorist attacks of 11 September 2001. Two such commissions of inquiry are the Detainee Inquiry in the United Kingdom (commonly known as the Gibson Inquiry) and the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, in Canada (also referred to as the Arar Commission).
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Violence
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 42
- Paragraph text
- The Gibson Inquiry was established to examine whether and to what extent State security and intelligence agencies were involved or otherwise complicit in the improper treatment or rendition of detainees held by other States in counter-terrorism operations in the aftermath of the attacks of 11 September 2001. Some non-governmental organizations have criticized the inquiry for its lack of transparency and lack of opportunities for the participation of victims and other third parties.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Humanitarian
- Person(s) affected
- Persons on the move
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 43
- Paragraph text
- The Arar Commission was established to investigate the detention in 2002 of Maher Arar while in transit through New York and his subsequent rendition to the Syrian Arab Republic, where he was subjected to torture. In its report, the Commission acknowledged the wrongs perpetrated against Mr. Arar and recommended possible remedies; it also reviewed the policies and activities of the Royal Canadian Mounted Police and made recommendations on information-sharing and oversight mechanisms for national security agencies, including specific directives aimed at ensuring accountability and preventing any possible future complicity in torture.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Persons on the move
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 44
- Paragraph text
- During county visits undertaken by the mandate holder, reports of torture from national sources, such as official commission of inquiry, have been analysed in an effort to corroborate allegations of torture and other forms of ill-treatment. In May 2011, the Special Rapporteur conducted a visit to Tunisia to engage with the interim Government to examine the violations committed by the previous regime, assess the violations committed in the interim period under the transitional Government and identify measures to be implemented to prevent torture and other forms of ill-treatment in the future. In his report thereon (A/HRC/19/61/Add.1), the Special Rapporteur refers to the "national commission to establish the facts of abuses and violations from 17 December until the elimination of the cause", and recommends improvement of the fact-finding commission's methodology, particularly with regard to measures that could be taken to best preserve evidence gathered.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- N.A.
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 45
- Paragraph text
- In response to international pressure, the President of Kyrgyzstan, after consultations with the European Union, the Organization for Security and Cooperation in Europe and the Office of the United Nations High Commissioner for Human Rights, established a commission of inquiry into the events in southern Kyrgyzstan. The Special Rapporteur will take note of these findings in his forthcoming report on Kyrgyzstan, following his visit in December 2011. He will also take note of the Government's response when formulating his own recommendations, which will include an examination of the events of June 2010 in Osh and surrounding provinces, in addition to other issues within the scope of his mandate.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 46
- Paragraph text
- In Bahrain, a commission of inquiry was established pursuant to Royal Order No. 28 in response to the events of February and March 2011 and thereafter, to investigate alleged international human rights violations and propose recommendations. In response to the Commission's report, published in November 2011, the Government engaged in a consultation process with relevant actors in order to implement the recommendations, including an examination of all complaints of torture and other forms of ill-treatment. The Special Rapporteur welcomes the opportunity to follow up on the Commission's report, within the scope of his mandate, and to contribute further to the reform process during his official visit to Bahrain in March 2012.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- N.A.
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 47
- Paragraph text
- Although a commission of inquiry may aid States in the fulfilment of their international legal obligations with regard to torture and other forms of ill-treatment, establishing a commission of inquiry does not diminish such legal obligations. The international legal framework must therefore be considered at all stages of the development and implementation of commissions of inquiry into torture and other forms of ill-treatment. International law recognizes wide ranging obligations on States and corresponding rights of victims of torture and other forms of ill-treatment. The International Covenant on Civil and Political Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and constitutive documents of the regional human rights systems identify six interrelated obligations of States. Generally, these obligations are (a) the duty to protect from ill-treatment by public and private actors; (b) the duty to investigate; (c) the duty to enact and enforce legislation criminalizing torture; (d) the duty to exclude statements obtained by torture and other forms of ill-treatment from evidence against the accused in a criminal trial; (e) the duty to train personnel and provide procedural safeguards; and (f) the duty to grant redress and reparation for victims. An effective commission of inquiry will assist a State in meeting each of these obligations, which all remain in effect regardless of the breadth of the mandate or terms of reference of the commission.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 48
- Paragraph text
- The affirmative obligation of States to investigate gross violations of human rights law and serious violations of international humanitarian law is inextricably linked to the obligation to prosecute, and also to the right to truth. In its jurisprudence, the Human Rights Committee regularly invokes the obligation of States parties to the International Covenant on Civil and Political Rights to investigate and punish human rights violations. In the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, the General Assembly asserted that the obligation to implement international human rights law and international humanitarian law includes the duty to investigate violations effectively, promptly, thoroughly and impartially and, where appropriate, to take action against those allegedly responsible in accordance with domestic and international law. Moreover, States have the duty to investigate and, if there is sufficient evidence, the duty to submit to prosecution the person allegedly responsible for the violations and, if found guilty, the duty to punish him or her.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 49
- Paragraph text
- Article 12 of the Convention against Torture expressly obligates States parties to investigate all allegations of torture, asserting that each State party should ensure that its competent authorities proceed to a prompt and impartial investigation wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction. In its general comment No. 20, the Human Rights Committee stated that an effective remedy for allegations of torture and other forms of ill-treatment constituting a violation of article 7 required prompt and impartial investigation by competent authorities. Additionally, the right to an effective remedy established by article 2 of the International Covenant on Civil and Political Rights is widely understood to include the obligation to investigate.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 50
- Paragraph text
- The Human Rights Committee, in its general comment No. 31, noted that, in addition to the State establishing appropriate judicial mechanisms, administrative mechanisms were particularly required to give effect to the general obligation to investigate allegations of violations promptly, thoroughly and effectively through impartial bodies. Failure by a State party to investigate allegations of violations could in and of itself give rise to a separate breach of the Covenant.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 51a
- Paragraph text
- [According to the Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the main purposes of effective investigation and documentation of torture and other cruel, inhuman or degrading treatment or punishment are:] Clarification of the facts and establishment and acknowledgement of individual and State responsibility for victims and their families;
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- Families
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 51b
- Paragraph text
- [According to the Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the main purposes of effective investigation and documentation of torture and other cruel, inhuman or degrading treatment or punishment are:] Identification of measures needed to prevent recurrence;
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 51c
- Paragraph text
- [According to the Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the main purposes of effective investigation and documentation of torture and other cruel, inhuman or degrading treatment or punishment are:] Facilitation of prosecution and/or, as appropriate, disciplinary sanctions for those indicated by the investigation as being responsible and demonstration of the need for full reparation and redress from the State, including fair and adequate financial compensation and provision of the means for medical care and rehabilitation. The characteristics of an effective investigation include the establishment of a mechanism that can receive and investigate complaints, competent and impartial investigators, careful documentation of crimes perpetrated, and adequate protection of victims, witnesses and those conducting investigations. Only when an allegation is manifestly ill-founded should a public official implicated be allowed to retain office pending the outcome of an investigation and any subsequent legal or disciplinary proceedings.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Health
- Person(s) affected
- All
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 52
- Paragraph text
- The scope and type of information uncovered by commissions of inquiry are often different from the information that is disclosed through formal criminal investigation and prosecution. Whereas prosecutions are intended to fulfil a State's duty to achieve individual accountability, they may only bring to light a limited amount and type of information. Once an allegation of torture and other forms of ill-treatment is referred to competent authorities for the purpose of prosecution, the complete results of the ensuing investigation are not always disclosed for public record. While focused on accountability, commissions of inquiry also delve more deeply and broadly into the relevant facts and circumstances that led to the violations than a prosecutorial investigative authority would. In this way, a commission of inquiry can help to establish a more complete picture of how and why torture occurred by analysing not just the human, legal and political consequences of a State policy of torture but also by revealing insights into wider patterns of violations, institutional involvement and responsibility, and command responsibility, as well as provide valuable background information and leads to witnesses (see for example the Gibson Inquiry).
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 53
- Paragraph text
- Commissions of inquiry are able to complement the prosecutorial function as they may make use of information not admissible in a court of law because the evidentiary standards are less rigorous. For example, in commissions of inquiry, hearsay evidence is generally admissible owing to the lower evidentiary standards required. Similarly, often the required burden of proof is not as high as it would be in criminal trials; for example, a preponderance of the evidence may be sufficient, as opposed to proof beyond a reasonable doubt. Moreover, in the case of commissions of inquiry, individuals are typically invited voluntarily to testify or submit written statements, unlike the more formal deposition proceedings generally required in traditional courts of law.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 54
- Paragraph text
- Commissions of inquiry can also directly assist prosecutions by providing information collected by the commission to the prosecuting authorities. Information derived from a commission's final report can serve as a useful, even if not entirely comprehensive, tool in the formal prosecution of a victim's case. For example, the commission's findings may provide insights into the role and extent of the complicity of State officials in torture. In all instances where a commission of inquiry receives allegations of torture and other forms of ill-treatment committed by State or non-State actors, the allegation and all relevant evidence must be submitted to relevant prosecutorial authorities for the initiation of a formal legal investigation and, if relevant, prosecution.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- N.A.
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 55
- Paragraph text
- If a commission of inquiry precedes formal criminal prosecutions, or the two mechanisms exist simultaneously, care must be taken to ensure that the work of the commission does not inhibit prosecutions in any way. In establishing an international commission of inquiry to investigate the assassination of former Prime Minister of Pakistan Mohtarma Benazir Bhutto, the Secretary-General agreed that the international commission should be fact-finding in nature and not be a criminal investigation; the duty of carrying out a criminal investigation, finding the perpetrators and bringing them to justice, remains with the competent Pakistani authorities.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 56
- Paragraph text
- Additionally, a commission of inquiry cannot give effect to an amnesty law or decree, because amnesties that "prevent prosecution of individuals who may be legally responsible for war crimes, genocide, crimes against humanity and other gross violations of human rights are inconsistent with States' obligations under various sources of international law as well as with United Nations policy."
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 57
- Paragraph text
- The wealth of experience in national and international commissions of inquiry is a source of multiple lessons on both good and bad practices. The Istanbul Protocol and the Principles to Combat Impunity provide examples of standard-setting that apply to the institution, objectives, working methods and outcomes of commissions of inquiry. Given the wide variety of contexts and purposes for which commissions of inquiry are created, standards should be understood to be indicative and not fully binding as a matter of international law. Nevertheless, it is important to discuss standards as a way to determine when and how commissions of inquiry actually advance principles of international law and aid States, and the international community, in the fulfilment of their international legal obligations.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 58
- Paragraph text
- A commission of inquiry should be given the means to conduct a serious and rigorous examination of facts, most of which will be hidden or difficult to ascertain. For that reason, it is imperative that a commission have at its disposal the financial resources to travel, to provide for witness protection, to commission reports from experts and to finance forensic investigations and examinations. A commission should be able to hire staff of confidence and with proven professional expertise, including legal counsel, who should be shielded from political influence. Technical expertise and investigatory experience should be part of the recruitment process.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 59
- Paragraph text
- Where possible, national commissions of inquiry ought to be pursued before the establishment of an international commission of inquiry. Proximity to the affected population often adds to the legitimacy and potential impact of a commission of inquiry. States should, however, seek international assistance where they lack necessary resources and/or expertise. The international community has a duty to establish a commission of inquiry, using the various mechanisms available, when the State fails to break the cycle of impunity or is unwilling or unable to explore the truth and provide justice or where human rights violations threaten international peace and security. In addition, international commissions of inquiry can play a valuable role in promoting subsequent national investigations.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- All
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 60
- Paragraph text
- The people selected to be members of a commission of inquiry should be chosen on the basis of criteria designed to ensure the independence and impartiality of the body. The commissioners should enjoy a stature and recognition within the local community that will inspire confidence in the public. Importantly, commissioners should be persons of such high moral character and professional achievement that victims and witnesses should feel that they can approach the commission and participate in its proceedings without fear that their testimonies might be misused.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Person(s) affected
- N.A.
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 61
- Paragraph text
- There are various models of what to look for in the profile of members of a commission of inquiry, and each model is valid within the particular circumstances and legal culture of each State. For example, States may wish to ensure representation of the entire political or ideological spectrum, while others may not. In all circumstances, however, it is necessary for States to appoint commission members who will rise above partisanship and be first and foremost dedicated to the truth. It is important to include individuals with experience in fact-finding methodologies and assessment of the quality of evidence; for this reason, it is advisable to include at least some acting or retired magistrates or prosecutors. At the same time, it is important to reflect a wide range of expertise within the commission to ensure that the work benefits from diverse interpretations of the underlying problems. People of high moral standing from the sciences (especially medical, psychiatric and forensic sciences) and from social science and liberal arts backgrounds, including journalism, should also be included.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 62
- Paragraph text
- Where human rights violations have had a distinct ethnic, racial, or religious dimension, it is important to include people who fully understand the plight of affected communities. Under all circumstances careful attention should be paid to the inclusion of women in the composition of the commission. Of additional value is the inclusion of individuals with a gender perspective to better understand the specific ways in which vulnerable persons, including, women, children, lesbian, gay, bisexual and transgender persons, persons with disabilities and persons belonging to a minority or indigenous group suffer from gross violations, including torture and other forms of ill-treatment and how they affect their communities. Geographic and cross-cultural balance in a commission is also of the greatest importance, as long as the standards of expertise and professionalism are not diminished for the sake of political balance.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Social & Cultural Rights
- Person(s) affected
- Children
- Ethnic minorities
- LGBTQI+
- Women
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 63
- Paragraph text
- In the case of commissions appointed by the international community, the appointment of members should reflect first and foremost well-recognized expertise in international law. Previous experience with commissions of inquiry has been an important factor in the success of recent commissions.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 64
- Paragraph text
- A commission of inquiry should be created by way of the legal instrument that is most appropriate to its context and should reflect the high importance that States give to such investigative bodies. The legal instrument establishing a commission of inquiry may be an act of parliament, an executive order or decree, or a decision of the highest courts in exercise of their investigatory functions. In all circumstances, the legal instrument establishing a commission of inquiry should identify clearly the terms of reference of the commission's mandate, including a clear temporal and/or geographic framework that is appropriate for the issue being investigated. The mandate should not excessively broaden the universe of violations to be investigated. The text of the authorizing instrument should also set out clearly the scope of the inquiry, citing with precision the events and issues to be addressed. The terms of reference should be stated in neutral language to avoid the impression of a predetermined outcome. A commission should have flexibility to amend its terms of reference in exceptional circumstances, as long as newly found elements warrant the amendment and the commission's decision is publicly and transparently explained.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- All
- N.A.
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 65
- Paragraph text
- The legal instrument should also clearly establish the powers and attributions of the commission. Regardless of whether the findings of the commission have legal force in the national jurisdiction or are guidelines for future action of State institutions, it is imperative that commissions be seen as "official" bodies whose work and outcome the State pledges to respect and abide by. A commission must have the ability to inspect all documents in public agencies and archives, including those classified as secret or of limited distribution. A commission of inquiry should have subpoena powers; alternatively, it should be empowered to obtain evidence by applying to courts in order to summon witnesses and compel testimony, subject to the right of a person to remain silent if testimony might tend to be self-incriminating. These powers should extend to obtaining warrants for the inspection of places and search and seizure of documents and material evidence. In addition, a commission should have legally granted powers to protect witnesses, victims and their families from possible reprisal for their testimony.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 66
- Paragraph text
- In discharging its duties, a commission must be careful to design a strategy for the effective discovery of every fact relevant to its mission, as set out in its terms of reference. To ensure inclusiveness and ownership of a commission's methodology, broad and genuine consultations with relevant international and national actors, including civil society, should be undertaken when drafting the commission's terms of reference. Moreover, it is important to disclose the terms of reference and working methods to the public as a means to ensure their confidence in the proceedings and ultimate findings of the commission.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- All
- N.A.
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 67
- Paragraph text
- Hearings that are open to the public, like those pioneered by the truth and reconciliation commissions created in South Africa and Peru, are strongly preferred. Open hearings where victims and witnesses may speak directly to the public in their own voices are crucial to building understanding and trust in the public in the methodology used by the commission of inquiry. At the same time, it is important that open hearings be conducted in a manner that respects the dignity of each victim and witness, and protects the rights of alleged perpetrators, in the criminal law setting, from any breach in the presumption of innocence. The preference for open hearings should be without prejudice to some exceptions made for testimony to be received in camera, as required, for example, to ensure confidentiality and the security of victims or witnesses or when there are legitimate claims of national security interests. Under no circumstances should "secrets of State" be invoked as a justification to conceal the commission of human rights violations. The members of the commission of inquiry should alone be the judges of whether confidential or closed proceedings are necessary. Only in exceptional circumstances should hearings be confidential; in such cases, the precise justification for the confidentiality must be transparent and disclosed to the public.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 68
- Paragraph text
- The purposes of a commission of inquiry warrant a more flexible approach to rules of evidence, including the credibility of witness testimony. In assessing the credibility of evidence, a commission of inquiry should give special weight to corroborated testimony and to testimony subjected to cross-examination. A commission should also apply general rules in their assessment of the credibility of witnesses, including demeanour, subject to cultural and gender sensitivities. A commission should always accept testimony that is not subject to cross-examination, and should also avail itself of testimony that, if rendered in court, would be excludable as hearsay.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Person(s) affected
- All
- N.A.
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 69
- Paragraph text
- By itself, a commission of inquiry is never sufficient to fully satisfy a State's obligations under international law with regard to torture and other forms of ill-treatment. This framework demands that States (and, in default, the international community) ensure truth, justice, reparations for victims and guarantees of non-repetition through deep institutional reform. A policy or practice designed to fulfil one of those objectives to the detriment of others would violate well-established legal obligations.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 70
- Paragraph text
- Commissions of inquiry should therefore be considered complementary to other mechanisms, including criminal investigations and prosecution of perpetrators, the provision of reparations to victims, and extensive reforms to institutions, including the vetting of public officials. When carried out simultaneously with prosecutions, commissions of inquiry play a very important role in establishing a more comprehensive and nuanced picture of policy decisions (whether adopted publicly or in secrecy) that have resulted in patterns of torture and other forms of ill-treatment. The first duty of a commission of inquiry is to explore and develop facts in a rigorous and comprehensive way so that the precise details of torture campaigns may be discovered, protected against tampering or destruction, and disclosed to the public. This process of truth-seeking requires strict adherence to the guidelines set forth in the Istanbul Protocol. The information gathered by a commission of inquiry can also orient the investigative and prosecutorial strategies without substituting them. Moreover, the findings of a commission of inquiry can inform policy decisions of the executive or legislative branches, which should not depend on the outcome of trials. In that manner, the findings and recommendations of commissions of inquiry can help to fill gaps in the protection of human rights in the future, without prejudice to the determination of individual guilt or innocence, which only courts can make.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 71
- Paragraph text
- In countries emerging from post-conflict situations or repressive regimes, there is a need to prioritize reform to the judicial system so that the courts may be considered independent, impartial and effective enough to meet the State's obligation to prosecute and to guarantee fair trials. In such circumstances, employing a commission of inquiry as a first step in the process of establishing truth and justice may be not only useful but necessary.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- All
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 72
- Paragraph text
- In all cases, however, certain steps must be taken to ensure that the activities of a commission of inquiry do not jeopardize criminal due process standards, including, importantly, the rights of potential criminal defendants. Commissions of inquiry should not identify individuals as being criminally responsible for acts described in the final report if doing so violates the rights of the identified individuals, who should be presumed to be innocent, and may inject additional bias into any subsequent official criminal investigation or prosecution. It may be possible to "name names" in a non-accusatory manner, without necessarily affirming criminal responsibility. However, where a commission determines that evidence strongly indicates participation by one or more individuals in crimes within its mandate, it should submit the names and the underlying information or evidence to relevant judicial or prosecutorial bodies for the latter to proceed in accordance with procedural and substantive laws applying to criminal justice. Under no circumstances should a commission of inquiry delay or obstruct formal criminal investigation and prosecution of torture and other forms of ill-treatment.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 73
- Paragraph text
- In its recommendations, a commission of inquiry should identify clearly the ways in which the report is intended to be utilized by other mechanisms, including, but not limited to, investigation and prosecution of torture and other forms of ill-treatment, the provision of remedy and reparations to victims, and the prevention of torture and other forms of ill-treatment.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Violence
- Person(s) affected
- All
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 74
- Paragraph text
- The instrument of authorization must clearly empower a commission to issue a public report of its findings. Such a report must be published as an official document and circulated widely without interference of any sort. The contents of the report should be determined exclusively by the commission members and not subject to any form of prior censorship by any governmental authority. If commission members do not agree on every aspect of the report, dissenting and concurring opinions by individual commissioners should be made a part of the record. In additional, to ensure public confidence in the working methods and findings of a commission of inquiry, it is essential that the public be informed in advance of when to expect the publication of the commission's final report.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 75
- Paragraph text
- The final report of the commission of inquiry should be comprehensive and fulfil all aspects of its terms of reference as set forth in the legal instrument that created the body. Beyond a recitation of facts, the report of a commission of inquiry should attempt to provide an accurate picture of the social and political background against which the acts of torture and other international crimes took place. Crucially, the report should identify loopholes in the public and private institutional order that have allowed for the breakdown of legal and procedural protections and led to a culture of impunity for the crimes investigated by the commission. The report should make concrete and detailed recommendations on how to restore checks and balances or "horizontal accountability" between branches of Government and the effective functioning of institutions of control.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 76
- Paragraph text
- Evidence will often point to key actors responsible for the collapse of the rule of law, because institutions often break down when public officials in charge of them fail to live up to their duties. Nevertheless, the commission should resist the temptation to "name names". As stated above, officials must benefit from the presumption of innocence, and their conduct should be judged by the courts, not by a quasi-judicial investigatory body. This rule is also applicable to those individuals whose participation in the alleged criminal conduct was indirect. In all cases, the commission should submit the names and the preliminary evidence against each suspected individual to courts or prosecutors for appropriate legal action. If the commission decides to separate institutional failings from potential criminal activity and to name names of persons responsible for the former, it should still institute a measure of due process for those so identified; at the very least they must be able to appear before the commission, confront the allegations about their misconduct and offer their own version of events.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 77
- Paragraph text
- The report of the commission of inquiry should be published widely and in a manner that is accessible to the broadest audience possible, and should explain the commission's findings of fact and the legal analysis that supports its conclusions. The report should also contain detailed recommendations for all branches of Government (or to the international community, if applicable) on how to fulfil the State's obligations with regard to truth, justice, reparation to victims and guarantees of non-repetition. Through its highest authorities, the State should respond promptly to the publication of the commission's report, indicating its acceptance or rejection of each recommendation, with carefully reasoned explanations, and ideally a timetable for implementation of the recommendations.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- N.A.
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 78
- Paragraph text
- Commissions of inquiry into torture and other forms of ill-treatment are strong and flexible mechanisms that can yield substantial benefits for Governments, victim communities and the wider public. Unlike other mechanisms commonly engaged in the aftermath of allegations of torture and other forms of ill-treatment, such as criminal investigations and prosecutions, commissions of inquiry provide unique opportunities for a deeper understanding of the underlying context in which violations were committed, review of governmental policies, practices and institutional shortcomings, truth-telling and contributing to the healing of victim communities, and independent expert recommendations on reparation and guarantees of non-repetition. Commissions of inquiry can also play an integral role in providing impetus and eventually facilitating the formal investigation of current systems or legacies of torture and other forms of ill-treatment, and pave the way to effective and fair prosecutions. In these ways, commissions of inquiry may aid States in the fulfilment of their international legal obligations when allegations of torture and other forms of ill-treatment arise. However, in the absence of judicial mechanisms, a commission of inquiry alone will not satisfy a State's obligations.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Violence
- Person(s) affected
- N.A.
- Year
- 2012
Paragraph
Commissions of inquiry 2012, para. 79
- Paragraph text
- For States interested in establishing a commission of inquiry, the Istanbul Protocol and the updated set of principles for the protection and promotion of human rights through action to combat impunity provide key guidance for the elaboration and implementation of international practice. The present report complements these highly regarded documents and previous work of the special procedures by identifying additional recommendations and best practices that are specific to the conduct of commissions of inquiry into torture and other forms of ill-treatment.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Violence
- Person(s) affected
- N.A.
- Year
- 2012
Paragraph
Extra-custodial use of force and the prohibition of torture and other cruel, inhuman or degrading treatment or punishment
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Legal status
- Non-negotiated soft law
- Document type
- Special Procedures' report
- Year
- 2017
- Document code
- A/72/178
Document
Extra-custodial use of force and the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2017, para. 1
- Paragraph text
- In the past, the Special Rapporteur and other mechanisms against torture, including some of the most important treaty-based monitoring mechanisms, have focused predominantly on preventing the use of torture and other cruel, inhuman or degrading treatment or punishment in “custodial” settings, that is, once persons have been arrested, interned, imprisoned or otherwise deprived of their liberty. The extent to which and how the prohibition of torture and other cruel, inhuman or degrading treatment or punishment is applied to the use of force by State agents outside custodial settings (“extra-custodial” use of force) has not yet been systematically examined. This question is particularly relevant where State agents resort to unnecessary, excessive or otherwise unlawful force without necessarily infringing the right to life, for example, during arrest, stop and search or crowd control operations. While States must be in a position to use all lawful and appropriate means, including necessary and proportionate force, with a view to maintaining public security and law and order, experience shows that the use of force in insufficiently controlled environments carries a significant risk of arbitrariness and abuse. In his most recent report to the Human Rights Council (A/HRC/34/54), the Special Rapporteur expressed his intention to examine how the prohibition of torture and other cruel, inhuman or degrading treatment or punishment should be applied and interpreted in extra-custodial settings, particularly in view of potential justifications such as law enforcement, public security, crowd control or self-defence and the defence of others. The Special Rapporteur also expressed his intention to examine the extent to which the use of certain types of weapons, riot control devices or other means and methods of law enforcement would have to be considered intrinsically cruel, inhuman or degrading in the light of their immediate to long-term consequences.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2017
Paragraph
Extra-custodial use of force and the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2017, para. 2
- Paragraph text
- In examining the relationship between the prohibition of torture and other cruel, inhuman or degrading treatment or punishment and the international legal principles governing the use of force by State agents, and in developing concrete recommendations on the matter, the Special Rapporteur hopes to strengthen the capacity of States to ensure the effective prevention of and accountability for torture and other cruel, inhuman or degrading treatment or punishment, including in extra-custodial settings. Moreover, as a complement to existing international standards governing the use of force, the present report is aimed at contributing to the development of seamless guidance on the entire spectrum of the use of force, from non-lethal to deliberately lethal and from custodial to extra-custodial, and therefore at supporting States in complying with their relevant human rights obligations. The report is also aimed at facilitating synergies, both at the national and the international levels, between mechanisms tasked with protection against torture and other cruel, inhuman or degrading treatment or punishment and those involved in overseeing and regulating the use of force more generally.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- N.A.
- Year
- 2017
Paragraph
Extra-custodial use of force and the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2017, para. 3
- Paragraph text
- While the present report is focused on the extra-custodial use of force by State agents, its conclusions generally will also be relevant, mutatis mutandis, for non-physical forms of coercion and for ill-treatment committed by non-State actors. Owing to constraints of time and space, the Special Rapporteur intends to more systematically consider those issues in subsequent thematic reports. Moreover, in the present report the extra-custodial use of force under the law enforcement paradigm both in peacetime and in armed conflict is covered, but the use of force as a means of warfare under the hostilities paradigm is not examined. The terms “State agent” and “law enforcement official” will be used interchangeably to denote any person exercising, de jure or de facto, public authority on behalf of the State, whether of military or civilian status and whether appointed, elected, employed or contracted, including private security personnel. Finally, the implications of the extra-custodial use of force are examined in the present report under human rights law only, and not under potentially applicable international humanitarian law.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- All
- N.A.
- Year
- 2017
Paragraph
Extra-custodial use of force and the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2017, para. 4
- Paragraph text
- Building on the work undertaken by his predecessors and other mandate holders and mechanisms, the Special Rapporteur conducted extensive research and broad stakeholder consultations with academic experts and representatives of governments, international organizations and civil society organizations, including through a multi-stakeholder expert meeting held in Geneva on 1 and 2 May 2017 and a general call for submissions in response to a thematic questionnaire posted on the website of the Office of the United Nations High Commissioner for Human Rights from 29 May to 30 June 2017. The present report reflects the resulting conclusions and recommendations of the Special Rapporteur.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 2017
Paragraph
Extra-custodial use of force and the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2017, para. 5
- Paragraph text
- Apart from prohibiting the arbitrary deprivation of life and providing a few principles on the lawful use of lethal force, human rights treaties do not expressly regulate the extra-custodial use of force. Instead, the contemporary legal principles governing the use of force by law enforcement officials (“use of force principles”) have been derived primarily from State practice and the application and interpretation of these very general treaty provisions in case law. The principles have been restated in two soft law instruments, namely, the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials and the Code of Conduct for Law Enforcement Officials, and today can be regarded as general principles of law. In particular, the use of force by State agents is governed by the following cumulative principles: - Legality: any use of force must have a legal basis and pursue a lawful purpose. - Necessity: force must only be used when, and to the extent, strictly necessary for the achievement of a lawful purpose. - Proportionality: the harm likely to be inflicted by the use of force must not be excessive compared to the benefit of the lawful purpose pursued. - Precaution: law enforcement operations must be planned, prepared and conducted so as to minimize, to the greatest extent possible, the resort to force and, whenever it becomes unavoidable, to minimize the resulting harm.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- All
- N.A.
- Year
- 2017
Paragraph
Extra-custodial use of force and the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2017, para. 6
- Paragraph text
- In order for the use of force by State agents to be lawful, full adherence to all of the above principles is required.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- All
- N.A.
- Year
- 2017
Paragraph
Extra-custodial use of force and the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2017, para. 7
- Paragraph text
- According to the principle of legality, any use of force by State agents must pursue a lawful purpose and must be based on and regulated by national law. Lawful purposes typically include effecting the arrest or preventing the escape of a person suspected of having committed a crime, self-defence or defence of others against an unlawful threat of death or serious injury, or dispersing violent assemblies. A further parameter of legality is the equal treatment of all persons before the law in accordance with the principle of non-discrimination (see A/HRC/26/36, para. 74, and A/HRC/31/66, para. 15). States must provide express authority for the use of force in their national law and must regulate the matter in line with their obligations under international law.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2017
Paragraph
Extra-custodial use of force and the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2017, para. 8
- Paragraph text
- The principle of necessity requires that any use of force by State agents must be restricted to the least harmful means that can reasonably be expected to achieve the purpose pursued. Thus, law enforcement officials must apply non-violent means whenever possible and may use force only when, and only to the extent, strictly necessary to achieve a lawful purpose.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2017
Paragraph
Extra-custodial use of force and the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2017, para. 9
- Paragraph text
- The principle of necessity has a qualitative, a quantitative and a temporal aspect. In qualitative terms, any use of force must be “unavoidable” in the sense that non-violent or other less harmful means remain ineffective or without any promise of achieving the desired purpose. In quantitative terms, whenever the use of force is unavoidable, the degree to which and the manner in which force is employed may not be more harmful than strictly necessary. Finally, in temporal terms, the use of force is unlawful if, at the moment of its application, it is not yet or no longer unavoidable to achieve the desired lawful purpose. Therefore, any law enforcement operation involving the use of force requires a constant reassessment of its necessity to achieve the desired purpose. Should the circumstances evolve so as to permit the achievement of that purpose through less harmful means, force may no longer be used.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2017
Paragraph
Extra-custodial use of force and the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2017, para. 10
- Paragraph text
- While the principle of necessity requires a factual assessment of the least harmful means that can be expected to achieve the desired purpose, the principle of proportionality involves an additional and separate value judgment as to whether the harm expected to result from the use of force can be justified in the light of the benefit of the desired purpose. Even if force is necessary for the achievement of that purpose, it can only be permissible if the resulting harm remains proportionate compared to the seriousness of the offence and the importance of the desired purpose. Thus, irrespective of considerations of necessity, the requirement of proportionality defines an absolute upper limit for the force that might be permissible to achieve a specific lawful purpose (A/HRC/26/36, para. 66). The “harm” to be weighed in the proportionality assessment does not necessarily have to be of physical nature, but can also involve mental suffering and emotions of humiliation and distress.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Person(s) affected
- All
- Year
- 2017
Paragraph
Extra-custodial use of force and the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2017, para. 11
- Paragraph text
- A proportionality assessment must always be made in the light of the circumstances of each case. As a general rule, potentially lethal force must not be used except where strictly necessary to: (a) defend any person against the imminent threat of death or serious injury; (b) prevent the perpetration of a particularly serious crime involving grave threat to life; or (c) arrest a person presenting such a danger or prevent their escape. Intentionally lethal force may only be used when strictly unavoidable in order to protect life from an unlawful attack. For example, even the aim of lawful arrest cannot justify the use of firearms to stop a thief or pickpocket not otherwise posing a threat to life and limb. In such cases, considerations of proportionality require that the risk of the suspect escaping arrest is to be preferred over the risk of causing the suspect’s death or serious injury. Other factors that may be relevant in evaluating the degree of force that is proportionate include the individual’s behaviour, age, gender and health.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Violence
- Person(s) affected
- All
- Year
- 2017
Paragraph
Extra-custodial use of force and the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2017, para. 12
- Paragraph text
- Even if the use of force is necessary and proportionate in the immediate circumstances of a case, it may nonetheless be unlawful if it results from a failure to plan, organize and control operations so as to minimize harm, respect and preserve human life and avoid any excessive use of force.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- All
- Year
- 2017
Paragraph
Extra-custodial use of force and the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2017, para. 13
- Paragraph text
- In particular, States should thoroughly train their police forces to avoid situations in which the use of force will become inevitable and equip them with various methods and types of weapons and ammunition allowing for a differentiated use of force, including “less lethal” incapacitating weapons and self-defensive equipment such as shields, helmets, bulletproof vests and bulletproof means of transportation. Moreover, law enforcement officials must constantly re-evaluate the situation with a view to avoiding unnecessary or excessive use of force. Whenever the use of force becomes unavoidable, law enforcement officials must ensure that assistance and medical aid is provided to any injured or affected persons at the earliest possible moment.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Humanitarian
- Person(s) affected
- All
- Year
- 2017
Paragraph
Extra-custodial use of force and the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2017, para. 14
- Paragraph text
- In practice, the required standard of precaution does not impose an unrealistic burden but always relates to what is reasonably possible in the circumstances.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- All
- N.A.
- Year
- 2017
Paragraph
Extra-custodial use of force and the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2017, para. 15
- Paragraph text
- Applying the principles of legality, necessity, proportionality and precaution to the particular context of policing assemblies, any decision to forcibly disperse a peaceful assembly or protest must be taken with due regard to the freedoms of assembly and of expression. In particular, article 21 of the International Covenant on Civil and Political Rights provides that “no restrictions may be placed on the exercise of [the right to peaceful assembly] other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others”. Moreover, it must be emphasized that individuals cannot lose their protection against torture and other cruel, inhuman or degrading treatment or punishment under any circumstances whatsoever, including in the context of violent riots or unlawful protests.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2017
Paragraph
Extra-custodial use of force and the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2017, para. 16
- Paragraph text
- It should be noted that the above-mentioned principles govern the use of force, not only in extra-custodial settings, but also where riots, unrest or other violent incidents occur within places of detention. Depending on the circumstances, they may also be relevant in determining the permissibility of invasive health and security procedures, such as the taking of bodily samples or a strip search. In their relations with persons deprived of their liberty, law enforcement officials may not use force, except when strictly necessary for the maintenance of security and order within the institution or when personal safety is threatened, and they may not use firearms, except in self-defence or in the defence of others against the immediate threat of death or serious injury or when strictly necessary to prevent the escape of an inmate presenting a threat of death or serious injury.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Violence
- Year
- 2017
Paragraph
Extra-custodial use of force and the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2017, para. 17
- Paragraph text
- The absolute and non-derogable prohibition of torture and cruel, inhuman or degrading treatment or punishment has been codified in a wide range of universal and regional instruments and today is universally recognized as a core principle of customary international law. The prohibition of torture is also one of the few norms of customary international law that is universally recognized as having attained peremptory status (jus cogens). Furthermore, the prohibition of torture, cruel, humiliating and degrading treatment “at any time and in any place whatsoever” is also included in article 3 common to the Geneva Conventions of 12 August 1949, which the International Court of Justice has held to reflect a general principle of law, namely, “elementary considerations of humanity”.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2017
Paragraph
Extra-custodial use of force and the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2017, para. 18
- Paragraph text
- The absolute and non-derogable character of the prohibition entails that any use of force amounting to torture or other cruel, inhuman or degrading treatment or punishment is conclusively unlawful and cannot be justified under any circumstances, whereas the peremptory character of the prohibition of torture means that any contradicting national administrative act or legislation, international agreement or judicial decision is automatically devoid of any legal effect.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2017
Paragraph
Extra-custodial use of force and the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2017, para. 19
- Paragraph text
- States have a corollary obligation to take effective legislative, administrative, judicial or other measures to prevent acts of torture and cruel, inhuman or degrading treatment or punishment within their jurisdiction. Wherever there is reasonable ground to believe that extra-custodial force amounting to torture or other cruel, inhuman or degrading treatment or punishment has been used, States have a duty to conduct a prompt and impartial investigation in order to ensure full accountability for any such act, including, as appropriate, administrative, civil and criminal accountability, and to ensure that victims receive adequate redress and rehabilitation.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2017
Paragraph
Extra-custodial use of force and the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2017, para. 20
- Paragraph text
- Torture has been defined in many universal and regional instruments, albeit not always in precisely identical terms.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2017
Paragraph
Extra-custodial use of force and the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2017, para. 21
- Paragraph text
- A definition of torture was set out in article 1 of the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1975, as follows: 1 ... torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purposes as obtaining from him or a third person information or confession, punishing him for an act he has committed or is suspected of having committed, or intimidating him or other persons. It does not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions to the extent consistent with the Standard Minimum Rules for the Treatment of Prisoners. 2 Torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2017
Paragraph
Extra-custodial use of force and the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2017, para. 22
- Paragraph text
- Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984 provides that: The term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2017
Paragraph
Extra-custodial use of force and the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2017, para. 23
- Paragraph text
- Article 2 of the Inter-American Convention to Prevent and Punish Torture of 1985 provides that: Torture shall be understood to be any act intentionally performed whereby physical or mental pain or suffering is inflicted on a person for purposes of criminal investigation, as a means of intimidation, as personal punishment, as a preventive measure, as a penalty, or for any other purpose. Torture shall also be understood to be the use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capacities, even if they do not cause physical pain or mental anguish. The concept of torture shall not include physical or mental pain or suffering that is inherent in or solely the consequence of lawful measures, provided that they do not include the performance of the acts or use of the methods referred to in this article.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2017
Paragraph
Extra-custodial use of force and the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2017, para. 24
- Paragraph text
- Article 7 (2) (e) of the Rome Statute of the International Criminal Court provides that: “Torture” means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions. Torture has not been given a definition within the text of article 7 of the International Covenant on Civil and Political Rights or any of the main regional human rights instruments, but has been applied and interpreted extensively by the respective oversight bodies.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2017
Paragraph
Extra-custodial use of force and the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2017, para. 25
- Paragraph text
- Although all major universal and regional human rights treaties expressly prohibit cruel, inhuman and degrading treatment or punishment, none of them offers a definition of the term as a whole or of its components (namely, “cruel”, “inhuman” and “degrading”). The concept has been interpreted and applied in a wide range of cases before judicial and quasi-judicial bodies, albeit with varying precision. Thus, for example, the Inter-American Commission on Human Rights indicated that “inhumane treatment includes unjustifiable conduct that causes severe physical, mental or psychological pain or suffering, and that treatment or punishment of an individual may be degrading if he is severely humiliated in front of others or he is compelled to act against his wishes or conscience”, whereas the Human Rights Committee did not “consider it necessary to draw up a list of prohibited acts or to establish sharp distinctions between the different kinds of punishment or treatment; the distinctions depend on the nature, purpose and severity of the treatment applied”.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2017
Paragraph
Extra-custodial use of force and the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2017, para. 26
- Paragraph text
- While the distinction between torture and other cruel, inhuman or degrading treatment or punishment will always depend on the applicable treaty definition, the generic observations set out in the paragraphs below can be made.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 2017
Paragraph
Extra-custodial use of force and the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2017, para. 27
- Paragraph text
- First, both torture and any other form of cruel, inhuman or degrading treatment or punishment are absolutely prohibited and therefore cannot be justified under any circumstances. The broad scope of this prohibition covers a wide variety of more or less aggravated forms of inflicting pain or suffering, all of which are conclusively unlawful but only some of which qualify as torture. The term “pain or suffering” encompasses both physical and mental pain and suffering, including humiliation and emotional anguish.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2017
Paragraph
Extra-custodial use of force and the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2017, para. 28
- Paragraph text
- Second, torture constitutes an aggravated form of cruel, inhuman or degrading treatment or punishment. “Aggravation” here refers to aggravated wrong, which does not necessarily require aggravated pain and suffering. As pointed out by the Inter-American Court of Human Rights, “the violation of an individual’s right to physical and mental integrity has different levels that range from torture to other types of abuse or cruel, inhuman or degrading treatment, the physical and mental consequences of which vary in intensity according to factors that are endogenous and exogenous to the individual (such as, duration of the treatment, age, sex, health, context, and vulnerability), which must be analysed in each specific situation”.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Governance & Rule of Law
- Health
- Person(s) affected
- All
- Year
- 2017
Paragraph
Extra-custodial use of force and the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2017, para. 29
- Paragraph text
- Third, while the notion of cruel, inhuman or degrading treatment or punishment may include a wide range of actions amounting to unlawful infliction of pain or suffering, the aggravated threshold of torture requires a number of additional criteria that may vary slightly depending on the applicable treaty definition and its interpretation by the relevant oversight bodies. Thus, according to the Inter-American Court of Human Rights, “an act constitutes torture when the ill-treatment: (a) is intentional; (b) causes severe physical or mental suffering, and (c) is committed with a specific purpose or objective”. Similarly, the African Commission on Human and Peoples’ Rights has interpreted torture as “the intentional and systematic infliction of physical or psychological pain and suffering in order to punish, intimidate or gather information” and usefully pointed out that torture could be carried out by “State or non-State actors at the time of exercising control over such person or persons”. According to the European Court of Human Rights, torture, as opposed to other inhuman and degrading treatment, involves “deliberate inhuman treatment causing very serious and cruel suffering”. Both the European Court and the African Commission have used article 1 of the Convention against Torture as a reference point for defining torture for the purposes of the European Convention on Human Rights and the African Charter on Human and Peoples’ Rights, whereas inter-American bodies have tended to refer to the Inter-American Convention to Prevent and Punish Torture.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Health
- Person(s) affected
- All
- Year
- 2017
Paragraph
Extra-custodial use of force and the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2017, para. 30
- Paragraph text
- As a previous mandate holder has clarified, “torture constitutes such a horrible assault on the dignity of a human being because the torturer deliberately inflicts severe pain or suffering on a powerless victim for a specific purpose, such as extracting a confession or information from the victim” (A/HRC/13/39, para. 60; see also A/63/175, para. 50). The distinguishing factor between torture and other cruel, inhuman or degrading treatment or punishment “is not the intensity of the suffering inflicted, but rather the purpose of the conduct, the intention of the perpetrator and the powerlessness of the victim” (A/HRC/13/39, para. 60). Indeed, “all purposes listed in Article 1 CAT, as well as the TP [travaux préparatoires] of the Declaration and the Convention, refer to a situation where the victim of torture is a detainee or a person ‘at least under the factual power or control of the person inflicting the pain or suffering’, and where the perpetrator uses this unequal and powerful situation to achieve a certain effect, such as the extraction of information, intimidation, or punishment”.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Violence
- Person(s) affected
- All
- Year
- 2017
Paragraph
Extra-custodial use of force and the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2017, para. 31
- Paragraph text
- Building and further elaborating on these observations, the Special Rapporteur concludes that it is the deliberate instrumentalization of the pain or suffering inflicted on a powerless person as a vehicle for achieving a particular purpose, even if exclusively for the sadistic gratification of the perpetrator, which is the essence of torture. For the purposes of the present report, “powerlessness” means that someone is overpowered, in other words, has come under the direct physical or equivalent control of the perpetrator and has lost the capacity to resist or escape the infliction of pain or suffering. Even though the text of article 1 of the Convention against Torture suggests that the range of purposes capable of qualifying an act as torture is limited, the specifically listed purposes — interrogation, punishment, intimidation, coercion or discrimination of any kind — are phrased so broadly that it is difficult to envisage a realistic scenario of purposeful ill-treatment against a powerless person that would escape the definition of torture. As a matter of generic concept, therefore, the definition of torture does not necessarily depend on the precise purpose or intensity of the inflicted pain or suffering, but on the intentionality and purposefulness of that infliction in conjunction with the powerlessness of the victim.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Violence
- Person(s) affected
- All
- Year
- 2017
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Extra-custodial use of force and the prohibition of torture and other cruel, inhuman or degrading treatment or punishment 2017, para. 32
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- Thus, while torture always requires the intentional and purposeful infliction of pain or suffering on a powerless person, other forms of cruel, inhuman or degrading treatment or punishment can also comprise the infliction of pain or suffering without deliberate intention (for example, as an expected or unexpected incidental effect) or without instrumentalizing such pain and suffering for a particular purpose, and can include the unnecessary, excessive or otherwise unlawful use of force against persons who are not powerless, for example, in situations of self-defence, arrest or crowd control. The transition from “other” cruel, inhuman or degrading treatment or punishment to torture is illustrated in Corumbiara v. Brazil, in which the Inter-American Commission on Human Rights first noted that “the police used excessive, unnecessary, and disproportionate force against the workers, thereby injuring over fifty of them” and then pointed out that “after bringing the situation entirely under control, the State agents submitted the workers to beatings, humiliation, and inhuman and degrading treatment”, concluding that, once Brazil had “gained full control of the situation”, its use of force against the workers amounted to torture.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Violence
- Person(s) affected
- All
- Year
- 2017
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