Eu-China Dialogue Seminar on Human Rights

EU-China Dialogue Seminar on Human Rights

Working Paper 1:

Prevention of Torture.

Prepared by the International Rehabilitation Council for Torture Victims (IRCT)

Copenhagen, 17-18 October 2002

The Prevention of Torture

Workshop Proposal

EU-China Seminar, 17-18 October 2002

The struggle against torture can be viewed in terms of the relationship between three fundamental concepts, namely prohibition, prevention and redress.

At the national level, the prohibition of torture requires the enactment of legislation prohibiting torture and requiring the prosecution of persons believed to be responsible for acts of torture or other forms of ill treatment. At the same time, the prosecution of suspected offenders is one of the activities commonly associated with reparation or redress. For many victims of torture, seeking justice against those responsible for the violation is a particularly important form of redress.

The prevention of torture could be viewed as the ongoing implementation of the principles of the UN Convention against Torture. Prevention can encompass a variety of different initiatives and approaches, among them the prosecution of offenders, the undertaking of regular preventative visits to places of detention, training for law enforcement officials or for other professional groups who deal with detainees as part of their work, together with a wide variety of different advocacy and awareness-raising activities, addressing people at all levels of society. Some activities which could be considered to be preventative in nature, e.g. the prosecution and punishment of perpetrators, could also be considered, as discussed above, to be a form of redress – a recognition of the State’s determination to seek justice on behalf of a citizen whose rights have been violated. The prosecution of offenders is also an important measure in the fight against impunity, in the sense that it draws attention to the existence of the prohibition and to the State’s determination to uphold the rule of law.

In addition to the pursuit of justice against the perpetrator, redress can encompass one or more of a number of judicial and non-judicial measures. One such measure, the provision of appropriate medical or psychosocial treatment and support for victims of violations, can also have a certain preventative and ‘prohibitive’ effect: The establishment of a treatment programme raises awareness of the ongoing practice of torture in a society. The medical documentation of a suspected incident of torture can provide the evidentiary base on which the conviction of an offender can be grounded.

Objectives of Seminar:

• to further develop the dialogue with China on prevention of torture, as well as to introduce the right to redress
• to introduce a new element into the dialogue, namely a discussion on possibilities for further co-operation on the prevention of torture

Structure of the Workshop:

• Discussion within the Workshop: Brief opening interventions by representatives of each delegation on the concepts proposed for discussion, followed by a more detailed discussion, focusing on training and education for the prevention of torture. It is recommended that that the participants address the practical aspects of implementation in their interventions.

• Visit to the International Rehabilitation Council for Torture Victims (IRCT): All participants will be invited to visit the General Secretariat of the IRCT, based in Copenhagen, where they will receive a presentation of the organisation and its work, in particular the IRCT’s experience from co-operation on prevention projects with national governments.

Suggested composition of the delegations

• Given the multidisciplinary nature of torture prevention and redress, the delegations should be encouraged to include, in addition to legal experts, representatives from the relevant social sciences and health professions.

Topics for Discussion

As torture is prohibited by law in China, this seminar should focus on the other two important concepts in the fight against torture, prevention and redress.

1.Prevention of Torture

The prevention of torture requires action at all levels of society and the implementation of a multidisciplinary approach. Despite being a criminal offence, acts of torture may continue to take place in a society, however, due to a lack of appropriate training (or retraining) of police and detention personnel. Effective prevention requires positive, sustained measures by national authorities based on sound knowledge of the patterns of incidence of torture and ill treatment in a society and of the work-tools that can be utilised to combat it. A lack of proper understanding of the prevailing conditions within a country can hinder many well-intended prevention initiatives in achieving their full potential. Another important ingredient in the success of torture prevention activities is the cultivation of ongoing professional contacts between relevant professional groups; law enforcement officers, legal or medical personnel or practitioners in the various health sciences, from different countries.

The public condemnation of torture at the highest level, referring to the existence of the prohibition and to the fact that those in charge in places of detention at the time abuses are perpetrated will be held personally responsible for them, can have a significant preventative impact[1].

Civil society, including torture-specialist non-governmental organisations can also make a contribution to torture prevention initiatives, working independently or in partnership with national administrations. Experts in the investigation and documentation of torture, lawyers, health professionals trained in the forensic sciences and others can document the incidence of torture in accordance with the UN-endorsed Principles on the Effective Investigation and Documentation of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment[2] (commonly known as the Istanbul Principles). Appropriately qualified health and medical personnel can also provide advice on the provision of treatment and psychosocial support for victims of torture. Organisations with special expertise in the prevention of torture can advise authorities how other countries have sought to address this problem and can formulate recommendations for developing a comprehensive programme of action.

Among the myriad preventative measures that could be undertaken, the following are presented for further discussion within the workshop:

1. Training and Education

Preventative training and education programmes are most effective when the participants include representatives from all groups in society that are concerned with the care or management of detainees. The most obvious target group, however, is law enforcement personnel, since it is they who have the principal responsibility for the day-to-day care of detainees. Experience shows that the vast majority of incidents of torture take place within the first few hours after a person has been detained; i.e. during the first period of questioning or interrogation.

Even where torture is clearly prohibited in domestic legislation, law enforcement officials may be unaware of the fact that torture is illegal. Officials may also choose to torture or otherwise mistreat detainees if they believe it is what their superior officers expect of them. If perpetrators are rarely, if ever, brought to justice, then the temptation to use torture may be overwhelming. It is partly for this reason that public denunciation of torture at the highest levels of a country’s administration, as referred to above, is so important.

The following UN documents provide guidance as to the relevant international rules governing the treatment of detainees:

Standard Minimum Rules for the Treatment of Prisoners (First UN Congress on the Prevention of Crime and the Treatment of Offenders, Geneva, 1955), the Code of Conduct for Law Enforcement Officials (UNGA res. 34/169 annex), The Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (Eighth UN Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 1990), and the Body of Principles for the Protection of All persons under Any Form of Detention or Imprisonment.

In this context, it should be mentioned that acts of torture are not necessarily confined to the places of detention most commonly associated with the criminal justice system; i.e. prisons, remand centres and police stations. Torture or ill treatment can also take place in other public institutions where persons are deprived of their liberty, e.g. schools, hospitals, asylums, orphanages or refugee camps, and personnel from these types of institutions should also be included in training initiatives. Education is also needed in order to raise awareness of the needs of refugee claimants who have been victims of torture or ill treatment in their country of origin.

The Istanbul Principles, discussed above, are a particularly useful tool for States committed to the eradication torture, hereunder in the investigation, documentation, prosecution or amelioration of individual violations. Legal, medical and forensic experts all have important roles to play in the implementation of the Principles.

At a more general level, human rights education should be included in all school and university curricula, in order to raise awareness and thereby lay the groundwork for the eradication of torture.

ii.Visiting mechanisms to places of detention

In the context of training and education, it is highly relevant to also mention a much discussed preventative measure in this regard, namely visits to places of detention. Prevention of torture can be promoted by carrying out of periodic, independent visits to all places where people are deprived of their liberty. Visits may take place within the mandate of a particular national or international mechanism, or they may be less formal arrangements, carried out by qualified representatives from civil society or by reputable non-governmental organisations in co-operations with the relevant authorities.

Visiting mechanisms can contribute to the prevention of torture for the following reasons:

• They can examine conditions and procedures of detention and make recommendations for improvements, where appropriate;
• They establish an ongoing process of constructive dialogue with detention personnel and authorities;
• They offer practical and moral support for persons deprived of their liberty;
• The knowledge of their existence can act as a deterrent for detention personnel and authorities that might otherwise sanction the use of torture or other forms of ill treatment against persons in their care.

The usefulness of visiting mechanisms as a tool for the prevention of torture has been demonstrated in the European context by the Committee for the Prevention of Torture, established in 1989 under the auspices of the Council of Europe. On a global level, a draft Optional Protocol to the Convention against Torture, adopted by the UN Human Rights Commission in April 2002, and shortly to be considered by the General Assembly, would, if adopted and following its entry into force, establish a dual system of international and national visiting mechanisms for those States Parties choosing to ratify it.

Most of the existing international treaties have created mechanisms to monitor States Parties’ compliance with their treaty obligations, through regular reporting. Article 20 of the UN Convention does provide for a specific reactive mechanism allowing the Committee against Torture to carry out visits, but only where there are well-founded indications that systematic and widespread torture has been committed. In contrast to this traditional reactive approach, the Optional Protocol would establish proactive international and national visiting mechanisms, focussing solely on prevention.

1. Redress

There is a well-established right at international law entitling victims of human rights abuses to compensation for their loss and suffering[3]. Article 14 of the UN Convention outlines the detailed right to reparation and redress for torture victims, and provides that:

‘Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full a rehabilitation as possible. In the event of the death of the victim as the result of an act of torture, his dependants shall be entitled to compensation.’

Redress is not necessarily a question of instigating a legal process, or of obtaining a financial remedy. Redress and the closely interrelated concept of reparation should be seen as flexible concepts, encompassing a number of possible actions, which may be pursued with a view to obtaining a financial or moral remedy or both. Article 14 of the Convention is not prescriptive in nature. A State Party to the Convention that wishes to implement the article in full should address itself to what form(s) of redress the victim of an act of torture would themselves like to receive.

Reparation for human rights violations has, in the words of the current Special Rapporteur on Torture, Theo van Boven:

‘the purpose of relieving the suffering of and affording justice to victims by removing or redressing to the extent possible the consequences of the wrongful acts…Reparation should respond to the needs and wishes of the victim.’[4]

Professor van Boven outlines four main forms of reparation in his ‘Draft Basic Principles and Guidelines on the Right to Reparation for Victims of Gross Violations of Human Rights and Humanitarian Law’[5]:

• Restitution – designed to re-establish the situation which would have existed had the wrongful not occurred.
• Compensation – should be provided for any economically assessable damage which results from the act
• Rehabilitation – to include medical, psychological and other legal care and services, as well as measures to restore dignity and reputation.
• Satisfaction and guarantees of non-repetition – including verification of facts and full public disclosure of the truth; a declaratory judgement; apology; judicial or administrative sanctions against the perpetrator(s); commemorations; prevention of recurrence.

The process of the State (as the party responsible for implementing article 14) itself seeking to identify the victim’s wishes and to meet them insofar as it is possible to do so can in itself be a form of redress, a public acknowledgement of a wrong committed by the State and a desire to put that wrong to rights.

In this regard, paragraph 10 of the resolution on torture from the 58th Commission on Human Rights provides relevantly:

‘…national legal systems should ensure that the victims of torture or other cruel, inhuman or degrading treatment or punishment obtain redress and are awarded fair and adequate compensation and receive appropriate socio-medical rehabilitation, and encourages the development of rehabilitation centres for victims of torture;’

Rehabilitation may involve a variety of forms of medical, health professional or psychosocial intervention or support. Medical personnel and others with relevant expertise in the field of health or the social sciences have an important role to play in assessing the need for rehabilitation services and providing treatment and support to victims. Although the treatment methods applied may vary from one country to another, depending on relative capacity or on the particular cultural context, there is general consensus amongst all engaged in rehabilitation work that an holistic approach to treatment should be promoted; i.e. one that addresses the needs of the victim in the broader context of relationships to other family members or to the community in which he or she lives. Where the capacity to do so exists, rehabilitation centres seek to offer a range of services to clients, with a view to securing the reintegration of the client into society to the extent possible.

Reintegration is critical, as victims often continue to feel (or to be treated by others) as if were at least partly responsible for the acts perpetrated against them, even if they have obtained a formal acknowledgement, administrative or judicial, that they have been wronged. Reintegration aims to ensure that victims do not remain on the fringes of society but that they can once again be active participants in the life of the community. Finally, sanctions must be imposed, since if the perpetrators are not brought to justice, not only the victim but the entire body politic will be diminished.

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International Rehabilitation Council for Torture Victims Borgergade 13  P.O. Box 9049  1022 Copenhagen K  Denmark

Phone: +45 33 76 06 00  Fax: +45 33 76 05 00  E-mail: 

[1] Taken from the Interim Report of the Special Rapporteur on Torture to the UN General Assembly, 3 July 2001, UN Document A/56/156.

[2] The Principles evolved in the drafting of the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ‘The Istanbul Protocol’, which was submitted to the United Nations by a coalition of professional and human rights bodies in August 1999. The Principles were subsequently annexed to UN General Assembly Resolution on Torture (A/RES/55/89), and have now been published by the Office of the High Commissioner for Human Rights in its Professional Training Series (ref. OHCHR Professional Training Series No.8).

[3] e.g. Article 8, Universal Declaration of Human Rights, article 2(3), International Covenant of Civil and Political Rights.

[4] Study Concerning the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms. Final Report.’ UN Doc. E/CN.4/Sub.2/1993, paragraph 137.

[5] UN Doc. E/CN.4/Sub.2/1993, as summarised in ‘Torture Survivors Perceptions of Redress, Preliminary Survey, the Redress Trust, London, at p.13