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PUCL Bulletin,
June 2001
European
Union adopts guidelines to combat torture
Also see, Amnesty
International calls on all governments to follow EU on eradication of
torture
The Council of the European Union adopted guidelines for formulating active
EU efforts to combat torture and other cruel treatment and punishment.
Torture occurs in more than half of the countries of the world, in spite
of the fact that it is prohibited under laws and international conventions.
Those responsible are seldom called to account for their actions.
"Torture, degrading treatment and inhuman punishments are among the
worst violations of human rights," the Minister for Foreign Affairs,
Ms Anna Lindh, declared. "The EU has pledged to respect and promote
human rights. This is a main component of the Union's foreign and security
policy."
Sweden is one of the initiators of the new guidelines and has taken action
to ensure their rapid adoption. The guidelines, which were adopted today,
will be the basis for the EU's coordinated efforts to counter torture.
"The Union has
previously strengthened its efforts against capital punishment. As a result
of these efforts the death penalty has been abolished everywhere in Europe
except Turkey and in many countries outside Europe. We will now spare
no effort in removing the shameful blot on humanity which torture is,"
Ms Lindh said.
"Torture, other
cruel treatment and inhuman punishment can be stopped. What is needed
is the political will on our part and on the part of political leaders
all over the world who are at present doing nothing to bring these violations
of human rights to an end. In our bilateral and multilateral contacts
the EU will urge them to shoulder their responsibility," she continued.
The guidelines mean
that information about the occurrence of torture will be collected by
EU representatives around the world. The EU will pursue the issue of the
abolition of torture in all contacts with states where torture still occurs.
The guidelines contain a long list of concrete measures that can be recommended
both in order to prevent torture and to rehabilitate victims of torture.
GUIDELINES TO EU POLICY
TOWARDS THIRD COUNTRIES ON TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING
TREATMENT OR PUNISHMENT PURPOSE
The purpose
of these guidelines is to provide the EU with an operational tool to be
used in contacts with third countries at all levels as well as in multilateral
human rights fora in order to support and strengthen on-going efforts
to prevent and eradicate torture and ill-treatment in all parts of the
world. The term "torture" is used in these guidelines in accordance
with the definition provided in Article 1 of the Convention against Torture
and Other Cruel, Inhuman and Degrading Treatment or Punishment. For the
purpose of these guidelines ill-treatment means all forms of cruel, inhuman
or degrading treatment or punishment, including corporal punishment, which
deprives the individual of its physical and mental integrity. While addressing
specific concerns about torture and ill-treatment is the primary purpose,
the guidelines will also contribute to reinforcing the EU's human rights
policy in general.
INTRODUCTION
The European Union is founded on the principles of liberty, democracy,
respect for human rights and fundamental freedoms, and the rule of law.
These principles are common to the Member States. Respect for human rights
features among the key objectives of the EU's common foreign and security
policy (CFSP).
Torture and ill-treatment are among the most abhorrent violations of human
rights and human dignity. According to the Universal Declaration of Human
Rights no one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment. No exceptions are permitted under international
law. All countries are obligated to comply with the unconditional prohibition
of all forms of torture and ill-treatment. Despite the efforts by the
international community torture and ill-treatment persist in all parts
of the world. Impunity for the perpetrators of torture and ill-treatment
continues to prevail in many countries.
To work towards the
prevention and the eradication of all forms of torture and ill-treatment
within the EU and world-wide is a strongly held policy view of all EU
member states. Promotion and protection of this right is a priority of
the EU's human rights policy.
- In its work towards
the prevention and eradication of torture and ill-treatment the EU is
guided by relevant international and regional norms and standards on
human rights, the administration of justice and the conduct of armed
conflict including, inter alia, those contained in the following instruments:
- Universal Declaration
of Human Rights
- UN International
Covenant on Civil and Political Rights (ICCPR) and its two Optional
Protocols
- UN Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(CAT)
- UN Convention
on the Rights of the Child (CRC)
- UN International
Convention on the Elimination of All Forms of Racial Discrimination
(CERD)
- UN Convention
on the Elimination of All Forms of Discrimination Against Women (CEDAW)
- European Convention
for the Protection of Human Rights and Fundamental Freedoms and its
Protocol no.6 as well as the relevant case-law of the European Court
on Human Rights
- European Convention
for the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (CPT)
- Statute of the
International Criminal Court
- Statute of the
International Tribunal for the Former Yugoslavia
- Statute of the
International Tribunal for Rwanda
- Geneva Conventions
on the Protection of Victims of War and its Protocols as well as customary
rules of humanitarian law applicable in armed conflict.
An additional list
of relevant norms and standards that the EU may invoke in its contacts
with third countries is provided in the Annex to the guidelines.
OPERATIONAL GUIDELINES
The operational part of these guidelines is meant to identify ways and
means to effectively work towards the prevention of torture and ill-treatment
within the CFSP. An example of measures already undertaken to this end
within the CFSP is the adoption of the EU Code of Conduct on Arms Export.
Another example is the ongoing work to introduce EU-wide controls on the
exports of paramilitary equipment.
The prohibition of
cruel, inhuman or degrading punishment imposes clear limits on the use
of the death penalty. The present guidelines thus also serve a complementary
role to the Guidelines to EU policy towards third countries on the death
penalty.
The EU supports actively
the work of the relevant actors (the Committee Against Torture, the Human
Rights Committee, the Committee for the Prevention of Torture of the Council
of Europe, the OSCE/ODIHR Advisory Panel on the Prevention of Torture
as well as the UN Special Rapporteurs and other relevant actors). The
EU will pro-actively contribute to ensure that the existing international
safeguards against torture and ill-treatment are strengthened and effectively
implemented.
Monitoring and reporting
In their periodic reports, the EU Heads of Mission will include an analysis
of the occurrence of torture and ill-treatment and the measures taken
to combat it. The Heads of Mission will also provide periodic evaluation
of the effect and impact of the EU actions. The Heads of Mission will
have the possibility of sending embassy representatives as observers to
trials where there is a reason to believe that defendants have been subjected
to torture or ill-treatment.
Assessment
The Council Working
Group on Human Rights (COHOM) and the relevant Geographic Working Groups
will on the basis of the reports of the Heads of Mission and other relevant
information, such as reports and recommendations from UN Special Rapporteurs
and Treaty Bodies as well as non-governmental organisations, identify
situations where EU actions are called upon, agree on further steps or
make recommendations to higher levels.
EU actions in relations with third countries
The EU's objective
is to influence third countries to take effective measures against torture
and ill-treatment and to ensure that the prohibition against torture and
ill-treatment is enforced. In its contacts with third countries, the EU
will, when deemed necessary, express the imperative need for all countries
to adhere to and comply with the relevant international norms and standards
and will consequently emphasise that torture and ill-treatment are forbidden
under international law. The EU will make its objectives known as an integral
part of its human rights policy and will stress the importance it attaches
to the prevention of torture and ill-treatment with a view to its global
eradication.
A) To achieve these objectives, the EU will take, inter alia, the following
actions:
Political dialogue
The human rights component of the political dialogue between the EU and
third countries and regional organisations shall, where relevant, include
the issue of torture and ill-treatment.
Démarches
The EU will make démarches and issue public statements urging relevant
third countries to undertake effective measures against torture and ill-treatment.
The EU will, where need be, request information on allegations of torture
or ill-treatment. The EU will also react to positive developments that
have taken place.
In well documented individual cases of torture and ill-treatment the EU
will urge (by confidential or public démarche) the authorities
in the country concerned to ensure physical safety, prevent abuses, provide
information and apply relevant safeguards. Actions on individual cases
will be determined on a case-by-case basis and may form part of a general
démarche.
Bilateral and
multilateral co-operation
Combating and preventing torture and ill-treatment will be considered
a priority in bilateral and multilateral co-operation for the promotion
of human rights, inter alia in collaboration with civil society, including
in the legal field and the field of training. Particular attention should
be given to such co-operation within the framework of the European Initiative
for Democracy and Human Rights.
B) In its actions against torture the EU will urge third countries to
take, inter alia, the following measures:
Prohibit and condemn torture and ill-treatment
Prohibit torture and ill-treatment in law, including criminal law; condemn,
at the highest level, all forms of torture and ill-treatment; take effective
legislative, administrative, judicial and other measures to prevent the
occurrence of acts of torture and ill-treatment in any territory under
its jurisdiction; prevent the use, production and trade of equipment which
is designed to inflict torture or other cruel, inhuman or degrading treatment
or punishment and prevent the abuse of any other equipment to these ends.
Adhere to international norms and procedures
Accede to the CAT, the ICCPR and relevant regional instruments, including
the CPT* (note, see bottom of text); - withdraw reservations incompatible
with the purpose and object of the CAT and the ICCPR; - consider withdrawing
other reservations to the CAT and the ICCPR; - consider allowing individual
and inter-state complaints under the CAT and the ICCPR; - accede to the
Statute of the International Criminal Court; - comply with the requests
for interim measures of protection, rulings, decisions and recommendations
of international human rights bodies; - co-operate with the relevant UN
mechanisms, in particular the UN Special Rapporteur on Torture, the UN
Special Rapporteur on Violence against Women and, where appropriate, the
UN Special Rapporteur appointed for the country concerned; - ensure that
no one is forcibly returned to a country where he or she risks being subjected
to torture or ill-treatment; - in countries where the death penalty is
still applied, ensure that in addition to the limitations contained in
Article 6 ICCPR, executions, as well as death row conditions, must be
such as to cause the least possible physical and mental suffering; - support
the work for adoption of a Draft Optional Protocol to CAT that provides
an independent and efficient international visiting mechanism for the
prevention of torture and ill-treatment and once such a Protocol is adopted,
accede to it; - co-operate with the relevant Council of Europe mechanisms,
in particular the decisions of the European Court of Human Rights and
recommendations of the Committee for the Prevention of Torture, and consent
to publication of the Committee's reports on visits to their countries.
Adopt and implement safeguards and procedures relating to places of
detention
Adopt and implement legal and procedural safeguards against torture and
ill-treatment in order to ensure that persons deprived of their liberty
are brought before a judicial authority without delay and that they have
access to lawyers and medical care without delay and regularly thereafter
and ensure that the persons deprived of their liberty can inform their
relatives and other relevant third parties without delay; ban secret places
of detention ensuring that all persons deprived of their liberty are held
in officially recognised places of detention and that their whereabouts
are known; - ensure that procedures for detention and interrogation are
in conformity with relevant international and regional standards; - improve
the conditions in places where persons deprived of their liberty are held
in order to conform with international and regional standards.
Establish domestic legal guarantees
Ensure that statements obtained through torture and ill-treatment shall
not be invoked as evidence in any proceedings, except against a person
accused of torture as evidence that the statement was made; - abolish
all forms of judicial corporal punishment;
Ensure that no exceptional circumstances whatsoever, including a state
of war or a threat of war, internal political instability or any other
public emergency, may be invoked as a justification of torture or ill-treatment;
- ensure that no order from a superior officer or a public authority may
be invoked as a justification of torture or ill-treatment; - ensure that
law enforcement officials, military, medical and other relevant personnel
will not be punished for not obeying orders to commit acts amounting to
torture or ill-treatment.
Combat impunity
Bring those responsible for torture and ill-treatment to justice in trials
that conform to international norms for a fair trial and which exclude
the death penalty or extradite them for prosecution in another state where
these guarantees are fulfilled; - conduct prompt, impartial and effective
investigations of all allegations of torture in accordance with the Istanbul
Rules annexed to CHR resolution 2000/43; - ensure to the greatest possible
extent that amnesty is not granted in respect of acts of torture, and
ensure that amnesties do not deprive individuals of the right to an effective
remedy, including compensation and rehabilitation.
Groups requiring special protection
Establish and implement standards and measures relating to women, children,
refugees, asylum-seekers, internally displaced persons, migrants and other
groups requiring special protection against torture and ill-treatment.
Allow domestic procedures for complaints and reports of torture and
ill-treatment
Establish and operate effective domestic procedures for responding to
and investigating complaints and reports of torture and ill-treatment
in accordance with the Istanbul Rules; - ensure that alleged victims of
torture or ill-treatment, witnesses, those conducting the investigation
and their families are protected from violence, threats of violence or
any other form of intimidation or reprisal that may arise pursuant to
the report or investigation.
Provide reparation and rehabilitation for victims
Provide reparation for the victims of torture and ill-treatment and
their dependants, including fair and adequate financial compensation as
well as appropriate medical care and social and medical rehabilitation.
Allow domestic visiting mechanisms
Allow visits by suitably qualified representatives of civil society
to places where persons deprived of their liberty are held.
Establish national institutions
Consider creating and operating and, where appropriate, strengthening
independent national institutions (e.g. human rights ombudspersons or
human rights commissions) which can effectively address the prevention
of torture and ill-treatment.
Provide effective training
Train law enforcement officials and military personnel as well as
medical personnel (civil and military) to comply with the relevant international
standards; - ensure the training of the judiciary, prosecutors and lawyers
on the relevant international standards; - ensure that transfers of equipment
and training for military, security or police use do not facilitate torture
and ill-treatment; - ensure that training programmes for law enforcement
personnel include training on the prevention of violence against women,
on the rights of the child and on discrimination on such grounds as race
and sexual orientation.
Support the work of medical professionals
Enable medical professionals to work independently and confidentially
when preparing observations on alleged cases of torture and ill-treatment;
- protect doctors, forensic experts and other medical professionals who
report cases of torture and ill-treatment.
Conduct autopsies
Ensure that medico-legal autopsies are carried out by trained forensic
specialists in accordance with internationally recognised standards; provide
for proper forensic examination in all cases of serious injury of detained
persons.
Other initiatives
The EU will:
Continue to raise the issue of torture and ill-treatment in multilateral
fora, such as the UN, the Council of Europe and the OSCE. The EU will
continue to actively support the relevant resolutions at the UN bodies
including the General Assembly and the Commission on Human Rights; * support
the relevant international and regional mechanisms (e.g. the Committee
Against Torture, the European Committee for the Prevention of Torture,
the relevant Special Rapporteurs) and stress the need for states to co-operate
with the mechanisms; support the UN Voluntary Fund for the Victims of
Torture and encourage other countries to do so; offer joint or bilateral
co-operation on the prevention of torture and ill-treatment; support public
education and awareness-raising campaigns against torture and ill-treatment;
* support the work of relevant national and international NGOs to combat
torture and ill-treatment and maintain a dialogue with them; * continue
to fund projects undertaken to improve training of personnel and conditions
in places of detention and will maintain its substantial support for rehabilitation
centres for victims of torture across the world.
NOTE
* Upon the entry into force of its First Optional Protocol the CPT will
be open to accession for non-member states of the Council of Europe after
an invitation from the Committee of Ministers of the Council of Europe.
The Protocol requires only one additional ratification (Ukraine) before
its entry into force. Ukraine's ratification is expected shortly.
ANNEX
In addition to the list of instruments included in the introductory part
of the guidelines the EU may invoke, where relevant, in its contacts with
third countries concerning torture and ill-treatment the following norms
and standards and principles.
UN Declaration on the Protection of All Persons from Being Subjected to
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;
UN Declaration on the Elimination of Violence Against Women UN Convention
Relating to the Status of Refugees; UN Declaration on the Protection of
All Persons from Enforced Disappearances; UN Principles on the Effective
Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions;
UN Standard Minimum Rules for the Treatment of Prisoners; UN Basic Principles
for the Treatment of Prisoners; UN Body of Principles for the Protection
of All Persons under Any Form of Detention or Imprisonment - UN Rules
for the Protection of Juveniles Deprived of their Liberty;
UN Declaration of Basic Principles of Justice for Victims of Crime and
Abuse of Power; UN Basic Principles on the Independence of the Judiciary
- UN Basic Principles on the Role of Lawyers; UN Guidelines of the Role
of Prosecutors - UN Standard Minimum Rules for Non-Custodial Measures
UN Code of Conduct for Law Enforcement Officials; UN Basic Principles
on the Use of Force and Firearms by Law Enforcement Officials; UN Principles
on Medical Ethics relevant to the Role of Health Personnel, particularly
Physicians, in the Protection of Prisoners and Detainees against Torture
and Other Cruel, Inhuman and Degrading Treatment or Punishment; UN Principles
on the Effective Prevention and Investigation of Extra-legal, Arbitrary
and Summary Executions Principles on the Effective Investigation and Documentation
of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(Istanbul Protocol) annexed to UN Commission on Human Rights resolution
2000/43; Safeguards guaranteeing protection of the rights of those facing
the death penalty (ECOSOC resolution 1984/50); Vienna Declaration and
Programme of Action; General Comments by the UN Human Rights Committee,
in particular No. 20 on Article 7 and No. 21 on Article 10 of the International
Covenant on Civil and Political Rights; General Recommendation no. 19
of the Committee on the Elimination of Discrimination against Women; African
Charter on Human and People's Rights; African Charter of the Rights and
Welfare of the Child; American Convention on Human Rights Inter-American
Convention to Prevent and Punish Torture; Recommendations of the Committee
of Ministers of the Council of Europe:
No. R (87) 3 European Prison Rules; No. R (98) 7 Concerning the ethical
and organisational aspects of health care in prison;
No. R (99) 3 On the Harmonisation of Medico-legal Autopsy Rules;
No. R (99) 22 Concerning Prison Overcrowding and Prison Population Inflation.
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