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Visits by human rights mechanisms as a means of greater protection for persons deprived of their liberty

Published online by Cambridge University Press:  27 April 2010

Edouard Delaplace  and
Matt Pollard
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Abstract

Although international humanitarian law and human rights law were originally intended to operate in different areas of competence, thirty years of visits by human rights mechanisms to places of detention in parallel with visits made by the International Committee of the Red Cross have shown that they are clearly complementary in several respects. First, there is complementarity in terms of action, in that different but not competitive visits are made. Secondly, through the formulation of increasingly precise legal rules there is complementarity in codification. Lastly, there is institutional complementarity through cooperation between the respective bodies. The result is broader and above all more effective protection for detainees — whatever the legal status assigned to them — which, if it cannot entirely eliminate the possibility of torture and cruel, inhuman and degrading treatment or punishment, can at least help to prevent and remedy such abuses.

Type
Detention
Information
International Review of the Red Cross , Volume 87 , Issue 857: Detention , March 2005 , pp. 69 - 82
Copyright
Copyright © International Committee of the Red Cross 2005

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References

1 Jean-Jacques Gautier et la prévention de la torture: de l'idée à l'action: Recueil de textes, APT and the European Institute of Geneva University, Geneva, 2004, p. 56Google Scholar.

2 For instance, Article 5 of the Universal Declaration of Human Rights; Article 7 of the United Nations International Covenant on Civil and Political Rights; United Nations Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; and United Nations Standard Minimum Rules for the Treatment of Prisoners.

3 Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

4 Article 5 of the American Convention on Human Rights.

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7 For more details about the lead-up to the adoption of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and of OPCAT, and about the link between the two texts, see OPCAT Manual, op. cit. (note 8); 20 ans consacrés à la réalisation d'une idée: Recueil de textes en;'honneur de Jean-Jacques Gautier, APT, Geneva, 1997Google Scholar; Decaux, Emmanuel, “La Convention européenne pour la prévention de la torture et des peines ou traitements inhumains ou dégradants”, AFDI, 1988, pp. 618–634Google Scholar; Vigny, Jean-Daniel, “La Convention européenne de 1987 pour la prévention de la torture et des peines ou traitements inhumains ou dégradants”, ASDI, 1987, pp. 62–78Google Scholar; Evans, Malcolm D. and Morgan, Rodney, Preventing Torture: A Study of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, Clarendon Press/Oxford University Press, Oxford/New York, 1998Google Scholar, in particular Chapter IV, “The origins and drafting of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment”, pp. 106–141.

8 For a complete list of the visits made by the CPT and an account of all its activities, see <www.cpt.coe.int> (visited on 3 March 2005).

9 Art. 7, para. 1, of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.

10 Op. cit. (note 9).

11 Dominican Republic (1965–1966, 1996 and 1997), Nicaragua (1978, 1980, 1988, 1992 and 1999), Haiti (1978, 1987, 1988, 1990, 1993, 1994 and 2000), El Salvador (1978, 1986 and 1987), Panama (1977, 1989, 1991 and 2001), Argentina (1979), USA (1982, 1996, 1998 and 1999), Venezuela (1996), Guatemala (1982, 1985, 1992 and 1998), Honduras (1982), Surinam (1983 and 1985), Mexico (1983), Peru (1991, 1992, 1993, 1998 and 2002), the Bahamas (1994), Jamaica (1994), Ecuador (1994), Paraguay (1999) and Colombia (1997 and 2001). This list does not include visits in connection with other rights, when no place of detention was visited and which did not concern torture or ill-treatment. Source: IACHR, Annual Reports (1970–2003) and various reports on follow-up visits available at: <www.cidh.oas.org/publi.eng.htm> (visited on 3 March 2005).

12 <www.legal.apt.ch/Mechanisms/Africa> (visited on 3 March 2005).

13 Commission on Human Rights resolution 1985/33, 13 March 1985, E/CN.4/RES/1985/33.

14 For a complete list, please see: <http://www.ohchr.org/english/issues/torture/rapporteur/visits.htm> (visited on 3 March 2005).

15 For more details, see Visiting places of detention. Lessons learnt and practices of selected domestic institutions. Report on an expert seminar, APT and Office of the United Nations High Commissioner for Human Rights, <www.apt.ch> (visited on 3 March 2005).

16 Amnesty International, “Preventing torture at home: A guide to the establishment of national preventive mechanisms”, AI Index: IOR 51/004/2004 (1 May 2004).

17 <www.cvict.org.np/legal.html> (visited on 3 March 2005).

18 <www.gyla.ge> (visited on 3 March 2005).

19 <http://www.serpaj.org.uy/> (visited on 3 March 2005).

20 <http://www.bghelsinki.org/index_en.html> (visited on 3 March 2005).

21 <http://www.imlu.org/> (visited on 3 March 2005).

22 Op. cit. (note 16).

23 <www.sahrc.org.za> (visited on 3 March 2005).

24 <www.humanrights.org.fj> (visited on 3 March 2005).

25 See Procuracion Penitenciaria, Ley 25.875 (20 January 2004), Articles 15–21, <http://infoleg.mecon.gov.ar/txtnorma/92063.htm> (visited on 3 March 2005).

26 Act on the Commissioner for Civil Rights Protection, of 15 July 1987, Article 13, <http://www.brpo.gov.pl/index.php?e=l&poz=360> (visited on 3 March 2005).

27 <http://www.oiguskantsler.ee/> (visited on 3 March 2005).

28 Doswald-Beck, Louise and Vité, SylvainInternational Humanitarian Law and Human Rights Law in International Review of the Red Cross, No. 293, March-April 1993, pp. 94–119, p. 94Google Scholar.

29 Sudre, Frédéric, Droit international et européen des droits de l'homme, Presses Universitaires de France, Paris, 5th edition, 2001, p. 31Google Scholar.

30 Paragraph 3 of General Comment 29, States of Emergency, adopted on 24 July 2001, A/56/40 Annex VI.

31 ICJ, Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 9 July 2004, para. 106Google Scholar, “… the Court considers that the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in Article 4 of the International Covenant on Civil and Political Rights.”

32 For example, Article 17.3 of the European Convention for the Prevention of Torture stipulates: “The Committee shall not visit places which representatives or delegates of Protecting Powers or the International Committee of the Red Cross effectively visit on a regular basis by virtue of the Geneva Conventions of 12 August 1949 and the Additional Protocols of 8 June 1977 thereto.” Similarly, but in a less categorical manner, Article 32 of OPCAT states: “The provisions of the present Protocol shall not affect the obligations of States Parties to the four Geneva Conventions of 12 August 1949 and the Additional Protocols thereto of 8 June 1977, nor the opportunity available to any State Party to authorize the International Committee of the Red Cross to visit places of detention in situations not covered by international humanitarian law.”

33 IACHR Special Report on the Human Rights Situation in the Challapalca Prison, Department of Tacna, Republic of Peru, OEA/Ser.L/V/II.118 Doc.3, 9 October 2003 available at “http://www.cidh.oas.org/countryrep/Challapalca.eng/toc.htm” (visited on 15 December 2004) and IACHR, Second Report on the Situation of Human Rights in Peru, OEA/Ser.L/V/II.106, Doc. 59 rev., June 2, 2000, Chapter IX.

34 See ICRC Annual Report 2002, p. 212.

35 E/CN.4/2001/66/Add. 1.

36 CPT/Inf (2004) 36, visit from 26 November 2002 to 6 December 2002.

37 <www.peacewomen.org/campaigns/regions/westasia/abouteng.htm> (visited on 3 March 2005).

38 ICRC Annual Report 2001, p. 270.

39 To date, none of the visit reports on this region has been published, but information on the dates and places visited is available on <http://www.cpt.coe.int/fr/etats/rus.htm> (visited on 3 March 2005).

40 CPT/Inf (2001) 15 of 10 July 2001 and CPT/Inf (2003) 33 of 10 July 2003.

41 On one occasion, both the CPT and the ICRC decided not to visit a place of detention, as each was sure that the other was going to visit it.

42 In this connection, see Monitoring Places of Detention: A Practical Guide, APT, 2004, <www.apt.ch> (visited on 3 March 2005).

43 It should, however, be noted that in practice the CPT is making increasing use of immediate on-the-spot observations made directly to the person in charge of the place of detention at the end of a visit.

44 Article 19(b).

45 Article 143 of the Fourth Geneva Convention guarantees the ICRC identical rights of access to protected persons.

46 See <http://www.ohchr.org/english/issues/torture/rapporteur/visits.htm> (visited on 3 March 2005).

47 Regulations of the Inter-American Commission on Human Rights, reprinted in Basic Documents pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc. 6 rev. 1 at 103 (1992), Article 58.

48 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, of 10 December 1984.

49 In particular Recommendation R (87) 3 on the European Prison Rules, adopted by the Committee of Ministers on 1 February 1987; Recommendation R (89)12 on education in prison, adopted by the Committee of Ministers on 13 October 1989; Recommendation R (98) 7 concerning the ethical and organisational aspects of health care in prison, adopted by the Committee of Ministers on 8 April 1988; Recommendation R (80) 11 concerning custody pending trial adopted by the Committee of Ministers on 27 June 1980.

50 Inter-American Convention to Prevent and Punish Torture of 9 December 1985.

51 Article 5 of the African Charter on Human and Peoples' Rights; Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (The Robben Island Guidelines), available at: <http://www.apt.ch/africa/rig/Robben%20Island%20Guidelines.pdf> (visited on 3 March 2005).

52 CPT/Inf(92)3; CPT/Inf(96)21 and CPT/Inf(2002)15.

53 CPT/Inf(92)3; CPT/Inf(97)10 and CPT/Inf(2001)16.

54 CPT/Inf(93)12.

55 CPT(97)10 and CPT/Inf(2003)35.

56 CPT/Inf(98)12.

57 CPT/Inf(99)12.

58 CPT/Inf(2000)13.

59 CPT/Inf(92)3.

60 CPT/Inf(2004)28.

61 See above.

62 To date this subject has not been put on the agenda of the Eleventh United Nations Congress on Crime Prevention and Criminal Justice, which is to be held in Bangkok from 18 to 25 April 2005.

63 E/CN.15/2003/CRP.9.

64 This text was adopted by the Fifth Conference of the Eastern, Southern and Central African Heads of Correctional Services, held in Windhoek, Namibia, from 4 to 7 September 2001, and debated during the Pan-African Conference on Prison and Penal Reform in Africa, held at Ouagadougou from 18 to 20 September 2002.

65 Draft resolution tabled by the Permanent Mission of Costa Rica to the Permanent Council of the OAS on 24 April 2002.

66 Third preambular paragraph of the European Convention for the Prevention of Torture.

67 Tekin v. Turkey, 9 June 1998, ECHR, Reports of Judgments and Decisions, 1998-IV.

68 Ibid., para. 9, 24, 42.

69 Ibid., para. 53.

70 Assenov and Others v. Bulgaria, 28 October 1998, ECHR, Reports of Judgments and Decisions, 1998- VIII.

71 The Court even took the view that the application, although originally filed under Article 5.1 of the Convention, should be examined in relation to Article 3 thereof so that the conditions of detention could be considered.

72 Op. cit. (note 70), para. 135.

73 See above.

74 CPT/Inf (1992)3, para. 42.

75 Labita v. Italy, 6 April 2000, ECHR, Reports of Judgments and Decisions, 2000-IV.

76 Valašinas v. Lithuania, 24 July 2001, ECHR, Reports of Judgments and Decisions, 2000-IV.

77 Peers v. Greece, 19 April 2001, ECHR, Reports of Judgments and Decisions, 2001-III.

78 Kudla v. Poland, 26 October 2000, ECHR, Reports of Judgments and Decisions, 2000-XI, para. 94.

79 Prosecutor v. Dusko Tadic aka Dule, 7 May 1997, ICTY, IT-94–1-T.

80 Ibid., paragraphs 159–160 and 169.

81 Prosecutor v. Zejnil Delalic, Zdravko Mucic also known as “Pavo”, Hacim Delic and Esad Landzo also known as “Zenga”, 16 November 1998, IT-96–21-T.

82 Ibid., para. 554.

83 The prosecutor v. Tihomir Blaskic, 3 March 2000, ICTY, IT-94–14-T, para. 681.

84 Op. cit. (note 79), para. 170.

85 Op. cit. (note 83) para. 694.

86 Op. cit. (note 81), para. 151.

87 Op. cit. (note 83), para. 700.

88 Op. cit. (note 79), para. 154.

89 Ibid, para. 744.

90 It should be noted that this practice owes much to the presence of a CPT member in the CAT (Dr Bent Sorensen from 1988 to 2000 and Mr Ole Vedel Rasmussen since 2000).

91 Dougoz v. Greece, 6 March 2001, ECHR, Reports of Judgments and Decisions, 2001–11.

92 Cassese, Antonio, International Law, Oxford University Press, Oxford, 2001, p. 45Google Scholar.