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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. 41
- Paragraph text
- The Court has also made numerous findings of inhuman or degrading treatment in cases involving the unnecessary or excessive use of force in the context of demonstrations. In Abdullah Yasa and Others v. Turkey, the Court found the launch of a tear gas grenade along a direct flat trajectory aimed towards protestors to be contrary to article 3 of the European Convention on Human Rights because it was not “proportionate to the aim pursued, namely to disperse a non-peaceful gathering” and because the severity of the resulting injuries to the applicant’s head were not “commensurate with the strict use by the police officers of the force necessitated by his behaviour”.
- 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
- Humanitarian
- 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. 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. 39
- Paragraph text
- Similarly, in the case of Rosendo Cantú et al. v. Mexico, the Inter-American Court of Human Rights considered “that rape may constitute torture even when it consists of a single act or takes place outside State facilities … because the objective and subjective elements that define an act as torture do not refer to the accumulation of acts or to the place where the act is committed, but rather to the intention, the severity of the suffering and the purpose of the act”. The Inter-American Commission on Human Rights also regarded as torture the intentional, violent beating of a person prior to arrest.
- 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. 44
- Paragraph text
- In Selçuk and Asker v. Turkey, the Court found the unjustified destruction of private homes to be inhuman treatment because it was “premeditated and carried out contemptuously and without respect for the feelings of the applicants”, who “had to stand by and watch the burning of their homes” while inadequate precautions were taken to ensure their safety and no subsequent assistance was provided.
- 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
- Humanitarian
- Year
- 2017
Paragraph
Torture, ill-treatment and coercion during interviews/ Universal protocol for non-coercive, ethically sound, evidence-based and empirically founded interviewing practices 2016, para. 54
- Paragraph text
- As a matter of best practice, interviewers are encouraged to proceed, when necessary, with probing questions designed to elicit information that will test all possible alternative explanations identified during the preparation of the interview. Strategic probing and disclosure of potential evidence allows officers to explore the interviewee's account in depth before proceeding to the next topic, helping to ensure that the presumption of innocence is respected while strengthening the case against a guilty suspect by preventing the subsequent fabrication of an alibi. Although interviewers may be persistent with their line of questioning when probing the interviewee's account, questioning must never become unfair or oppressive.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Year
- 2016
Paragraph
Torture, ill-treatment and coercion during interviews/ Universal protocol for non-coercive, ethically sound, evidence-based and empirically founded interviewing practices 2016, para. 52
- Paragraph text
- The development and maintenance of rapport is also a crucial determinant of effective non-coercive interviews. Rapport can help to reduce the interviewee's anxiety, anger or distress, while increasing the likelihood of obtaining more complete and reliable information. Rapport-building techniques must not be used for the purposes of manipulation or to exert undue pressure to induce confessions, which would be incompatible with the purpose and spirit of the investigative interviewing model. The protocol should clearly set out the duty of interviewers to maintain a professional attitude and refrain from using any form of coercion during the entire interview process. It must also emphasize that interviewers ought to obtain the cooperation of persons questioned, rather than to demonstrate their authority or gain control over them, manipulate them or force them to comply with their wishes.
- 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
- 2016
Paragraph
Torture, ill-treatment and coercion during interviews/ Universal protocol for non-coercive, ethically sound, evidence-based and empirically founded interviewing practices 2016, para. 53
- Paragraph text
- It is recommended that interviewers begin each topic by asking open-ended questions and allow the interviewee to provide a free and uninterrupted account of the events under investigation. Contrary to complex, leading or compound questions, open-ended and neutral questions encourage memory retrieval and are less likely to induce admissions against a person's will, influence his or her account or contaminate his or her memory. Broad and open-ended questions will enable innocent suspects to provide information freely, while preventing guilty suspects from understanding their evidentiary significance.
- 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
- 2016
Paragraph
Torture, ill-treatment and coercion during interviews/ Universal protocol for non-coercive, ethically sound, evidence-based and empirically founded interviewing practices 2016, para. 18
- Paragraph text
- Behavioural and brain sciences underlie the recognition that mistreatment and coercion are unreliable and counterproductive means to elicit accurate information. Torture and ill-treatment harm those areas of the brain associated with memory, mood and general cognitive function. Depending on their severity, chronicity and type, associated stressors typically impair encoding, consolidation and retrieval of memories, especially where practices such as repeated suffocation, extended sleep deprivation and caloric restriction are used in combination. Such practices weaken, disorient and confuse subjects, distort their sense of time and render them prone to fabricate memories, even if they are otherwise willing to answer questions. They are also detrimental to the establishment of trust and rapport, and compromise the interviewer's ability to understand a person's values, motivations and knowledge - elements required for a successful interview.
- 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
- 2016
Paragraph
Torture, ill-treatment and coercion during interviews/ Universal protocol for non-coercive, ethically sound, evidence-based and empirically founded interviewing practices 2016, para. 61
- Paragraph text
- The Special Rapporteur examines herein several safeguards of key significance to the future protocol, particularly as applicable to persons in detention. The protocol should also consider other scenarios, including the rights of suspects not deprived of liberty, safeguards attendant to informal questioning and additional preventive measures against mistreatment and coercion. The protocol must account for the reality that torture and ill-treatment during arrest or detention can also take place outside the interview room and induce forced confessions during subsequent questioning.
- 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
- 2016
Paragraph
Torture, ill-treatment and coercion during interviews/ Universal protocol for non-coercive, ethically sound, evidence-based and empirically founded interviewing practices 2016, para. 22
- Paragraph text
- Political decisions to resort to torture or ill-treatment and the failure to prevent its use jeopardize States' international cooperation and harm their reputations, moral authority and legacies. Ultimately, torture only breeds more crime by fuelling hatred and a desire for vengeance against the perpetrators. Its use in Northern Ireland in the 1970s and during the so-called "war on terror" has served as a recruiting tool for the groups against which it was 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
- Violence
- Year
- 2016
Paragraph
Torture, ill-treatment and coercion during interviews/ Universal protocol for non-coercive, ethically sound, evidence-based and empirically founded interviewing practices 2016, para. 85
- Paragraph text
- Suspect interviews must be at least audio, and preferably video, recorded (see A/HRC/4/33/Add.3 and A/68/295). Video recorders should capture the entire interview room, including all persons present. Video recording discourages torture while providing an authentic and complete record that can be reviewed during the investigation and used for training purposes. It cannot, however, be used as an alternative to the presence of counsel (see CAT/C/AUT/CO/3 and A/HRC/25/60/Add.1). The Special Rapporteur acknowledges the financial implications associated with the use of video-recording equipment. The protocol may explore alternative solutions, such as limiting the mandatory use of audiovisual recording to interviews of suspects, vulnerable victims or witnesses.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Humanitarian
- Year
- 2016
Paragraph
Torture, ill-treatment and coercion during interviews/ Universal protocol for non-coercive, ethically sound, evidence-based and empirically founded interviewing practices 2016, para. 86
- Paragraph text
- Recording should not be limited to confessions or other incriminating statements. Whatever the format, several elements must be recorded during an interview, including: its place, date, time and duration; the intervals between sessions; the identity of the interviewers and any other persons present and any changes in individuals present during questioning (see Human Rights Council resolution 31/31); confirmation that the interviewee was informed of his or her rights and availed himself or herself of the opportunity to exercise them and confirmation of any voluntary waiver; the substance and content of questions asked and answers, in addition to any other information, provided by the interviewer or interviewers or the suspect (see the Luanda Guidelines, guideline 9 (e)); and the time and reasons for any interruption and time of resumption of the interview (rules of procedure and evidence of the International Criminal Court, rule 112 (1)).
- 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
- 2016
Paragraph
Torture, ill-treatment and coercion during interviews/ Universal protocol for non-coercive, ethically sound, evidence-based and empirically founded interviewing practices 2016, para. 98
- Paragraph text
- The exclusionary rule also applies to evidence gathered or derived from information obtained under duress (see Inter-American Court of Human Rights, Cabrera García and Montiel Flores v. Mexico). States must carry the burden of proving that confessions were obtained without duress, intimidation or inducements. As a matter of best practice, the exclusionary rule should also apply to collecting, sharing and receiving information tainted by any form of coercion.
- 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
- 2016
Paragraph
Torture, ill-treatment and coercion during interviews/ Universal protocol for non-coercive, ethically sound, evidence-based and empirically founded interviewing practices 2016, para. 83
- Paragraph text
- The interpreter's role during questioning is to facilitate communication neutrally and objectively. His or her presence serves as a safeguard against mistreatment and coercion. The protocol should provide practical guidance as to the role, rights and responsibilities of interpreters during the conduct of interviews and emphasize that the right to interpretation applies to the questioning of all persons who are arrested or deprived of liberty, including during armed conflict and in administrative detention (Body of Principles, principle 14).
- 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
- Humanitarian
- Year
- 2016
Paragraph
Torture, ill-treatment and coercion during interviews/ Universal protocol for non-coercive, ethically sound, evidence-based and empirically founded interviewing practices 2016, para. 75
- Paragraph text
- The protocol should contain guidance on the right to free legal assistance. Many States regrettably still lack the resources and capacity necessary to provide legal aid (see the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems). In the absence of a sufficient number of certified lawyers and a full-fledged legal aid system covering all stages of deprivation of liberty, authorities should, as an interim measure, grant detainees the right to have a trusted third party present during questioning during initial custody (see CAT/OP/BEN/1). The United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, while asserting that lawyers are the first providers of legal aid, confirm that other stakeholders, including non-governmental organizations, community-based organizations, professional bodies and associations and academic institutions, may step in to fulfil this function.
- 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
- 2016
Paragraph
Torture, ill-treatment and coercion during interviews/ Universal protocol for non-coercive, ethically sound, evidence-based and empirically founded interviewing practices 2016, para. 23
- Paragraph text
- Professional interviewers repeatedly emphasize that interviews are conducted much more effectively without resort to torture, ill-treatment or coercion. The Special Rapporteur welcomes strides made by some States in fashioning and implementing human rights-based standards and guidelines for investigations and non-coercive interviewing practices, but is concerned that mistreatment and coercive questioning remain prevalent in many jurisdictions. Some progress notwithstanding, State practice most often ignores the relevant normative frameworks and fails to heed key due process guarantees and procedural safeguards designed to combat abuses committed during investigations and questioning that are codified in national legislation.
- 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
- 2016
Paragraph
Torture, ill-treatment and coercion during interviews/ Universal protocol for non-coercive, ethically sound, evidence-based and empirically founded interviewing practices 2016, para. 40
- Paragraph text
- Inducements may consist of promises of immunity or lighter sentences in exchange for confessions. Misleading practices include the use of trickery or deception, including by presenting false evidence, confronting persons with false witnesses or leading one to believe that his or her co-defendants have confessed. These methods are improper because they ultimately deprive a person of his or her freedom of decision through the use of false representations (see E/CN.4/813 and Corr.1). Techniques designed to minimize or maximize the suspect's perceptions of responsibility or blame, including implicit promises of leniency and presentation of false evidence, claims or insinuations about the existence of evidence against him or her, also increase the likelihood of false confessions.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Year
- 2016
Paragraph
Torture, ill-treatment and coercion during interviews/ Universal protocol for non-coercive, ethically sound, evidence-based and empirically founded interviewing practices 2016, para. 49
- Paragraph text
- The protocol must reiterate the precise aim of questioning, namely to obtain accurate and reliable information in order to discover the truth of all relevant facts about matters under investigation. The aim of interviews must not be to elicit confessions or other information reinforcing presumptions of guilt or other assumptions held by officers. Interviews are conducted to make the presumption of innocence operational. Officers generate and actively test alternative hypotheses through systematic preparation, empathetic rapport-building, open-ended questions, active listening, strategic probing and disclosure of potential evidence. Such interviews are far more effective and compliant with human rights.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Year
- 2016
Paragraph
Gender perspectives on torture and other cruel, inhuman and degrading treatment or punishment 2016, para. 72d
- Paragraph text
- [With regard to abuses in health-care settings, the Special Rapporteur calls upon States to:] Guarantee immediate and unconditional treatment of persons seeking emergency medical care, including as a result of illegal abortion;
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Health
- Year
- 2016
Paragraph
Gender perspectives on torture and other cruel, inhuman and degrading treatment or punishment 2016, para. 72c
- Paragraph text
- [With regard to abuses in health-care settings, the Special Rapporteur calls upon States to:] Set forth clear guidance on implementing domestic abortion legislation and ensure that it is interpreted broadly; and monitor the practical implementation of legislation to ensure that persons are provided the right to legal services in practice;
- 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
- 2016
Paragraph
Torture, ill-treatment and coercion during interviews/ Universal protocol for non-coercive, ethically sound, evidence-based and empirically founded interviewing practices 2016, para. 57
- Paragraph text
- The training of interviewers encompasses several components, beginning with effective training in international human rights law, including the prohibition of torture, ill-treatment and other form of duress; where applicable, training on the Geneva Conventions should also be provided. Training should include but not be limited to theoretical knowledge about international and national standards and guidelines relating to questioning, in addition to practical information, preparation and practice in the steps of investigative interviews and exercises designed to facilitate skills development. The use of scenario-based exercises and the recording and review of interviews constitute best practices in this respect. References to empirical and scientific evidence on the unreliability and counterproductiveness of torture and coercion will also help to effect the needed change in mindsets and interviewing culture. Underlining the adverse impact of mistreatment on memory retrieval would be especially beneficial. Training should also include awareness-raising activities on effective protection of and adaptation to the specific needs of vulnerable 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
- Health
- Year
- 2016
Paragraph
Torture, ill-treatment and coercion during interviews/ Universal protocol for non-coercive, ethically sound, evidence-based and empirically founded interviewing practices 2016, para. 62
- Paragraph text
- Judicial control of detention is a fundamental safeguard for persons deprived of liberty in connection with criminal charges. Persons detained on criminal charges must not be held in facilities under the control of their interviewers or investigators for more time than is legally required to hold a judicial hearing and obtain a judicial warrant of pretrial detention. This period should never exceed 48 hours, save absolutely exceptional and justified circumstances (see general comment No. 35). Suspects must be transferred to a pretrial facility under a different authority immediately thereafter, after which no further unsupervised contact with interviewers or investigators may be permitted (see A/68/295). As a matter of best practice, States ought to entrust different bodies with separate chains of command with the detention and questioning of persons, to help to protect detainees from mistreatment and reduce the risk of conditions of detention being used to pressure them during questioning. All detainees must be properly registered from the moment of apprehension, a public centralized detention register must be kept and the chain of custody thoroughly documented (see A/HRC/13/39/Add.5).
- 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
- 2016
Paragraph
Torture, ill-treatment and coercion during interviews/ Universal protocol for non-coercive, ethically sound, evidence-based and empirically founded interviewing practices 2016, para. 17
- Paragraph text
- History and science offer no body of data on the strategic effectiveness of harsh questioning techniques. The popular belief that torture is an effective way of discovering the truth - or more effective than non-coercive interviewing methods - is perpetuated by misleading depictions in popular media. The use of torture and ill treatment has in fact long been associated with high risks of obtaining false confessions and unreliable information. It is well established that victims will say anything - regardless of whether it is true - to appease their tormentors and make the pain stop (see European Court of Human Rights, Othman (Abu Qatada) v. the United Kingdom). It follows that the perpetrators cannot reliably assess whether information elicited through mistreatment - if any - is truthful, false or complete. Research on lie detection reveals that trained interviewers can differentiate fabrications from truths at a rate only slightly better than chance (slightly above 50 per cent). Those employing torture and ill-treatment during interviews tend to misread victims and fail to recognize the truth, often perpetuating a vicious cycle of mistreatment and fabrications.
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Topic(s)
- Violence
- Year
- 2016
Paragraph
Torture, ill-treatment and coercion during interviews/ Universal protocol for non-coercive, ethically sound, evidence-based and empirically founded interviewing practices 2016, para. 24
- Paragraph text
- Noting the growing attention to and momentum around the issues of investigation, questioning and custody practices at the international, regional and national levels (see Human Rights Council resolution 31/31), the Special Rapporteur identifies an auspicious opportunity to promote the development of much-needed standards and guidelines on these fundamental practices, with the aim of assisting States to meet their fundamental legal obligations to prohibit and prevent torture and ill-treatment. He takes particular note of the successful recent revisions of the Standard Minimum Rules for the Treatment of Prisoners (now known as the Nelson Mandela Rules) and the Model Protocol for a Legal Investigation of Extra-legal, Arbitrary and Summary Executions (Minnesota Protocol) and suggests the organization of a broad public consultation by States and other relevant stakeholders to engage in dialogue on the development of a universal protocol for interviews that is grounded in fundamental principles of international human rights law, including the prohibition of torture, ill-treatment and coercion.
- 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
- 2016
Paragraph
Torture, ill-treatment and coercion during interviews/ Universal protocol for non-coercive, ethically sound, evidence-based and empirically founded interviewing practices 2016, para. 48
- Paragraph text
- The investigative interviewing model comprises a number of essential elements that are key to the prevention of mistreatment and coercion and help to guarantee effectiveness. Interviewers must, in particular, seek to obtain accurate and reliable information in the pursuit of truth; gather all available evidence pertinent to a case before beginning interviews; prepare and plan interviews based on that evidence; maintain a professional, fair and respectful attitude during questioning; establish and maintain a rapport with the interviewee; allow the interviewee to give his or her free and uninterrupted account of the events; use open-ended questions and active listening; scrutinize the interviewee's account and analyse the information obtained against previously available information or evidence; and evaluate each interview with a view to learning and developing additional skills. The remainder of the present section provides an overview of some of these elements, on which the protocol should provide detailed guidance.
- 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
- 2016
Paragraph
Torture, ill-treatment and coercion during interviews/ Universal protocol for non-coercive, ethically sound, evidence-based and empirically founded interviewing practices 2016, para. 72
- Paragraph text
- Where a person waives the right to counsel, means of verification should be employed to ensure that he or she received clear and sufficient information about the content of the right and the potential consequence of a waiver and to establish that the waiver was voluntary and unequivocal (see the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems). When a person invoked the right to assistance of counsel during questioning, a waiver cannot be established by evidence that he or she responded to further questioning in the absence of counsel, even if formerly advised of his or her right to remain silent. In such situations, the interview cannot continue until the assistance of counsel is actualized, unless the interviewee initiates further communication with interviewers (see European Court of Human Rights, Pishchalnikov v. Russia).
- 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
- 2016
Paragraph
Torture, ill-treatment and coercion during interviews/ Universal protocol for non-coercive, ethically sound, evidence-based and empirically founded interviewing practices 2016, para. 76
- Paragraph text
- Persons arrested or detained on criminal charges must be informed of their right to remain silent during questioning by law enforcement in accordance with article 14 (3) (g) of the International Covenant on Civil and Political Rights. This right is inherent to the presumption of innocence and key to torture prevention efforts, given that interviewers respecting this right are unlikely to resort to abusive questioning methods. Suspects must be duly warned, at the beginning of every interview, that their words may be used in evidence against them. Persons' willing agreement to provide statements during questioning following this warning cannot be regarded as a fully informed choice when they were not expressly notified of the right to remain silent or when the decision was taken without the assistance of counsel (see European Court of Human Rights, Stojkovic v. France and Belgium).
- 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
- 2016
Paragraph
Prohibition of torture and other ill-treatment from an extraterritorial perspective 2015, para. 18
- Paragraph text
- The European Court of Human Rights also recognizes that States are responsible for the physical and mental integrity of persons under their authority, power or control, finding that States' responsibilities "may arise in respect of acts and events [taking place] outside [their] frontiers" and due to the acts of their agents, "whether performed within or outside national boundaries, which produce effects outside their own territory" (Loizidou v. Turkey; mutatis mutandis, M v. Denmark). Such scenarios recognized by the Court include the "exercise [of] authority and control over individuals killed in the course" of security operations by one State on the territory of another State (Al-Skeini v. The United Kingdom); the handover of individuals to the custody of a State's agents abroad (Öcalan v. Turkey); the interception and imposition of control over a ship (and persons therein) in international waters (Jamaa and others v. Italy); the detention of individuals in prisons operated or controlled by the State party abroad (Al-Saadoon and Mufdhi v. The United Kingdom); exercise of control over an area outside national territory as a consequence of military action (Hassan v. The United Kingdom); or the exercise of physical control over an individual, including outside formal detention facilities (Issa and others v. Turkey). Whenever a State exercises control over an individual extraterritorially through its agents, it must secure the substantive rights and freedoms under the Convention that are relevant to the situation of that individual (Al-Skeini).
- 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
- 2015
Paragraph
Prohibition of torture and other ill-treatment from an extraterritorial perspective 2015, para. 51
- Paragraph text
- The Special Rapporteur regrets evidence that States have employed restrictive doctrines, such as State secrets and political questions doctrines, in both territorial and extraterritorial contexts, in an effort to obstruct prosecution and evade responsibility (El-Masri v. The United States), and reminds States that competent courts in States parties to the Convention are obligated to exercise jurisdiction over acts of torture and ill-treatment, irrespective of the locus where wrongfulness took place. This obligation should also encompass situations wherein a State may be held responsible for its failure to pre-empt or remedy illicit conduct not directly attributable to it, such as when it failed to meet its due diligence obligations to prevent and protect persons from grave violations of human rights. The Supreme Court of the Netherlands recognized in the Dutch battalion case that the State was responsible for the deaths of three men at Srebrenica, Bosnia and Herzegovina, by failing to shield the victims when they sought refuge in a Dutch compound over which the State exercised "effective control" - defined as "factual control over specific conduct" - under article 8 of the draft articles on the responsibility of States for internationally wrongful acts. The Special Rapporteur welcomes the indication that States are not simply required to abstain from causing prohibited acts but are obligated, to the extent possible, to fight wrongfulness, including through investigation and prosecution 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
- Year
- 2015
Paragraph
Prohibition of torture and other ill-treatment from an extraterritorial perspective 2015, para. 58
- Paragraph text
- A State's failure to investigate, criminally prosecute or allow civil proceedings - or efforts to block or hinder such proceedings - relating to allegations of torture or other forms of ill-treatment constitutes de facto denial of an effective remedy. The Special Rapporteur regrets that this has been the case regarding victims of rendition and other extraterritorial acts of torture and ill-treatment seeking redress from Governments and reminds States that an essential component of the obligation to provide redress is the obligation not to obstruct redress or obstruct access of an individual to an effective remedy, for example by invoking "State secrets" to dismiss lawsuits in limine litis.
- 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