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International Workshop on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and its Optional

Protocol (OPCAT)



CAT Implementation and Preparation of State Report

Manfred NowakProfessor of International Law and Human Rights, University of Vienna, Austria

Austrian Chair Visiting Professor at Stanford University, CaliforniaUN Special Rapporteur on Torture (2004-2010)

Ha Noi, Viet Nam, 6 June 2014

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Table of Contents

1. Prevention of Torture and CIDT (CAT)

2. Prevention of Torture (OPCAT)

3. Investigation of allegations and suspicions of torture

4. Fighting impunity

5. Right of victims of torture to remedy and reparation

6. Monitoring of compliance by UN Committee against Torture

7. Preparing State reports to the Committee against Torture

8. Overview of selected monitoring bodies

9. Overview of missions by the UN Special Rapporteur on Torture (2005-2010)

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1. Prevention of torture

1. Prevention of Torture and CIDT (CAT)

Convention against Torture 1984

Article 2: effective legislative, administrative, judicial or other measures aimed at the prevention of torture, e.g. limiting police detention to 48 hours,

prompt access of detainees to a judge, a doctor, lawyer, family member, audio and video

Article 3: non-refoulementArticle 10: training of law enforcement personnelArticle 11: modernization of interrogation techniquesArticle 15: non-applicability of information extracted by tortureArticle 16: prevention of cruel, inhuman or degrading treatment or

punishment

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2. Prevention of Torture and CIDT (OPCAT)

Optional Protocol to CAT, 2002Preventive visits to places of detention

• ICRC• Jean-Jacques Gautier• Draft Costa Rica Protocol 1980• European Convention for the Prevention of Torture 1987: CPT• OPCAT 2002: UN Sub-Committee on Prevention and National

Preventive Mechanisms

Example: National Prevention Mechanism (NPM) in Austria NPM = Austrian Ombuds Institution + 6 Visiting Commissions consisting of 8

persons each: doctors, psychiatrists, psychologists, social workers, nurses, lawyers, political scientists, prison experts etc.

Jean-Jacques Gautier(1912-1986)

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3. Investigation of allegations and suspicions of torture

Article 12 CAT

“ Each State Party shall 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” (ex-officio investigations);

Article 13 CAT

“ Prompt and impartial investigation of any allegation of torture and protection against reprisals”;

“Police police”: need for an effective body with full powers of investigation and full independence from law-enforcement officials.

Example: British Police Complaints Commissions

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4. Fighting impunity

Article 4 CATObligation to criminalize torture in accordance with the definition in Article 1;

need for appropriate penalties which take into account the grave nature of torture;

Article 5-9 CAT Territorial, personal and universal jurisdiction; principle of aut dedere aut

iudicare;

Rome Statute of an International Criminal Court, 1998Systematic or widespread practice of torture as crime against humanity.

Examples- Pinochet case (Chile, UK, Spain)- Habré case (Chad, Senegal, Belgium)- Zardad case (Afghanistan, UK)- Guridi case (Spain)

Augusto Pinochet

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5. Right of victims of torture to remedy and reparation

Article 13 CAT

„Right to complain to, and to have his case promptly and impartially examined by, its competent authorities“ (right of victims to an effective remedy);

Article 14 CAT

Right of victims to adequate reparation, including compensation and full rehabilitation;

Need to establish and/or support professional torture rehabilitation centres.

Trauma therapy in an IRCT Rehabilitation Centre inTimor, Australia

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6. Monitoring of compliance by UN Committee against Torture

• State reporting procedure: Article 19 CAT, mandatory, periodic reports to be

submitted every 4 years

• Inter-State complaints procedure: Article 21 CAT, optional, no cases

• Individual complaints procedure: Article 22 CAT, optional, case law of the

Committee

• Inquiry procedure: Article 20 CAT, mandatory with opting-out possibility (Article 28),

in cases of well-founded indications of systematic practice of torture; 8 concluded

inquiries (Turkey, Egypt, Peru, Sri Lanka, Mexico, Serbia and Montenegro, Brazil,

Nepal)

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7. Preparing State reports to the Committee against Torture

• Article 19 CAT: Obligation of States parties to submit periodic reports (every four years) to the Committee against Torture; process should be participatory

• State reports should contain information on measures taken to implement CAT (prevention of torture and CIDT, fighting impunity, providing victims with remedy and reparation)

• State reports should also include shortcomings in the implementation of CAT

• State reports should provide factual information on cases of torture and CIDT (need for respective statistical information), on allegations of torture brought to the attention of the government, prosecutors, doctors and courts, on investigations of torture carried out and their results, on cases of prosecutions against perpetrators of torture, court sentences etc.

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UNSRT(1985)

CAT-Committee(1984/87)

CPT(1987/89)

OPCAT Subcommittee on

Prevention (2003/06)

OPCAT NPM

Area Global Mandate CAT States Parties (155)

47 member States of CoE; - open to non-CoE member States

OPCAT StatesParties (56)

State

Complaints procedure

No exhaustion of domestic remedies needed (UA, AL)

Exhaustion of domestic remedies;Declaration under Art. 22 CAT

No No No

Visits of Places of Detention

Only by invitation of host country- Private Interviews

Inquiry procedure (Art. 20); Only in agreement with the government

No invitation needed;

- Only notification of country mission- No consent for place of detention

No invitationneeded - Only notification of country mission- No consent for place of detention

No prior consent needed

Prevention Limited direct preventive impact;Recommendationto State;

Indirectly via recommendations toStates Parties and decisions

Preventive Preventive Preventive

8. Overview of selected monitoring bodies

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China Nov. 05

MongoliaJune 05

Georgia Feb. 05

NepalSept. 05

IndonesiaNov. 07

Sri LankaOct. 07

Equatorial GuineaNov. 08

Denmark & Greenland

May 08JordanJune 06

NigeriaMarch 07

ParaguayNov. 06

UruguayMarch 09

GuantanamoFeb. 06

KazakhstanMay 09

MoldovaJuly 08

(Cuba)Autumn 10

JamaicaFeb. 10

(Zimbabwe)Oct. 09

(Russia)Oct. 06

SudanOct. 06

Papua New GuineaMay 10

GreeceOct. 10

9. Overview of missions by the UN Special Rapporteur on Torture (2005-2010)