Draft convention on torture and other cruel, inhuman or degrading treatment or punishment : summary / prepared by the Secretary-General in accordance with resolution 18 (XXXIV) of the Commission on Human Rights.
|UN Document Symbol||E/CN.4/1314/Add.4|
|Convention||Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment|
|Subjects||Detained Persons, Torture and Other Cruel Treatment|
COMMISSION ON HUMAN RIGHTS
Item 10 of the provisional agenda
18 December 1979
QUESTION OF THE HUMAN RIGHTS OP ALL PERSONS SUBJECTED TO ANY FORM OF DETENTION OR IMPRISONMENT, IN PARTICULAR: (a) DRAFT CONVENTION ON TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT
Summary prepared by the Secretary-General in accordance with resolution 10 (XXXIV) of the Commission on Human Rights
Introduction ..... 1-4 2
I, General remarks (continued) . 5-8 2
II. Comments on the original draft articles submitted by
Sweden (E/CN.4/1285) (continued) 9-16 3
III.Comments on the draft articles submitted by the
International Association of Penal Law (E/CN.4/NGO/213). 17-26 5
IV. Comments on a revised, text of the substantive articles
submitted by Sweden (E/CN/WG . 1/WP.1) 27-34 6
1. In its resolution 32/62 of 0 December 1977, the General Assembly requested the Commission on Human Rights to draw up a draft convention against torture and other cruel, inhuman or degrading- treatment or punishment, in the light of the principles embodied in the Declaration on the Protection of All Persons from Being Subjected be Torture end Other Cruel, Inhuman or Degrading Treatment or Punishment,
2. The Commission examined this question at its thirty-fourth session. In accordance with Commission resolution 10 (XXXIV), the Secretary-General transmitted all relevant documents of the thirty-fourth session of the Commission concerning the draft convention to the Governments of States Members of the United Nations or members of specialized agencies for their comments and prepared this summary of comments received for submission be the Commission at its thirty-fifth session (E/CN./1/1314 and Adds. 1-3) .
3. After the mooting of the 'forking Group of the Commission given the task in accordance with Economic and Social Council decision 1970/24,, of preparing concrete drafting proposals for a draft convention for submission to the Commission at its thirty-fifth session, and following completion of the thirty-fifth session, the Secretary-General received further comments relating
to the documentation for the thirty-fourth session from Morocco, dated 4 April 1979, and Barbados, da bed 27 June 1979. The Secretary-General also received comments from Italy, doted 26 October 1979, on working paper E/GN.4/WG.l/WP.l, submitted by Sweden to the Working Group of the Commission, Which contained 9 revised version of the substantive articles.
4. In accordance with Economic and Social Council resolution 1979/35 "Which authorizes an open-ended working group of the Commission on Human Rights to meet for a period of one week prior to the thirty-sixth session of the Commission to complete the work on a draft convention on torture and other cruel, inhuman or degrading treatment or punishment, and requests the Secretary-General to transmit to the Commission on Human Rights at its thirty-sixth session oil relevant materials relating to the draft convention, the Secretary-General has summarized the information referred to in paragraph 3 above, With the exception of the comments of Barbados on a draft on clonal protocol prepared by the International Commission of Jurists, since that document was not submitted to the Commission on Human Rights nor to its 'forking Group.
I. GENERAL REMRKS (contned)
5. In its reply, Morocco supported the initiative for a draft convention on torture which is akin to and strengthens, through appropriate international co-operation, measures which have already proved successful in Moroccan internal law.
6. The Italian Government expressed its appreciation of the promising results of the work of the Commission on Human Rights at its thirty-fourth and thirty-fifth sessions.
7. The articles already approved, by the Commission on Human Rights and the revised articles submitted by the fwedish delegation constitute, in Italy's view, an excellent basis for negotiation from both the political and the strictly legal standpoints,
8. The Swedish draft clearly indicates that torture must be banned from our civilization. Furthermore, the Constitution of the Italian Republic, article 27 of which specifies that penalties .may not involve treatment that is contrary to humanitarian feeling but must rather help to rehabilitate the detainee, fully reflects this fundamental 1 spirit and makes it a specific legal commitment. The fact that torture still exists today and that it is used in so many countries calls for a reaffirmation at the legal level of specific international commitments among States designed to ensure that their nationals -.will in no case, under any pretext, have recourse, or be accessories, to such practices.
II. COMMENTS ON, THE ORIGINAL DRAFT ARTICLES SUBMITTED BY SWEDEN (E/CN.4/1285) (continued)
J. Barbados would have liked the definition of torture to be extended to cover the acts of private individuals, in the light of the provisions of articles 7 and 8 of the original draft. Article 7 extends the concept of torture to cover the offences of complicity, participation, incitement and attempt. These offences are committed by private citizens. Hence this article is inconsistent with article 1 which limits the definition of torture to acts of public officials. In the same way, article 8, which deals with offences committed on board ships and aircraft, necessarily refers to acts of individuals and therefore amounts to an extention of article 1. Therefore, torture in article 1 should be redefined to apply to the offences in articles 7 and 8 as well as other acts of private individuals. _l/
10. Morocco would have preferred the formula to a State where there are
reasonable grounds to believe" to be replaced by a formula such as ';to a State
known (or reputed) throughout the world to be practising torture'1. 2/
11. Morocco considered that article 8, paragraph 1 (c), was unclear, that it-
could give rise to tendentious applications and that it opened the question of
the principle of the territoriality of penal legislation. It proposed the
following wording for paragraph 1 (c); When the victim is a national of that
State and has been tortured (by a national of another State) on the territory
of that State . .. (see also Morocco's comments on article 14).
1/ The Working Group adopted by consensus paragraphs 1 and 3 of revised draft article 1 submitted by Sweden. See Commission on Human Rights, report on the thirty-fifth session, E/l979/36, para. 173, paras. 15-29 of the report of the Working Group .
2/ The Working Group decided to suspend discussion of this article to allow further consideration and consultation. See E/l979/36, para. 178,paras. 39-50 of the report of the 'Working Group,
12. For Barbados, paragraph 2 is a repetition of paragraph 1 and, considering also article 8 (3), ought to be deleted. (See also Morocco's comments on (article 14.)
13. Concerning article 12, which recognizes the right to compensation to the victim of an act of torture, Barbados thought that it should be specified whether the State, public official 01- individual is liable to pay compensation.
14. The extradition measure recommended would be possible only where a
Member State had received in its territory a national of another Member State
who had had previously committed an offence in his State of origin. Except
in that case, the principle of the territoriality of penal legislation applies
fully and the act of agreeing to extradite a national to another Member State,
on the ground that the victim is a national of that State, would be equivalent
to reversion to the humiliating practice of capitulations1', linked to the
worst memories of the colonial era. For these reasons, Morocco urges that
articles, 11 and 14 should be revised and, since they are based on a. single
concept, it should be possible to envisage a new wording which would be limited
to two articles and. would bring out the desired ideas in a more condensed form.
Articles 16 and 17
15. According to Barbados, provisions could be inserted in either of these
articles to allow States to submit reports to and collaborate with voluntary
organizations in the field of human rights.
16. In Morocco's view, the idea, that an individual could, after having
exhausted all domestic remedies, apply to the Human Sights Committee, was
extremely laudable. However, no Arab State and very few States of the African,
American and Asian continents had recognized the competence of the Human Rights
Committee, in accordance with the Optional Protocol to the International
Covenant on Civil and Political Rights. Recognition of its competence could
be unanimous only if the approach to and scope of human rights values were
viewed in the same way by everyone, and if membership of the Committee was
such that its impartiality was guaranteed. The fact that each Member State could take the initiative with regard to recognition of the Committee's competence may be considered, from the legal point of view, as a positive element, In view of the fundamental principles of international law; and particularly the principle of sovereign equality of States.
E/CN.4/l314/Add.4 page 5
III. COMMENTS ON THE DRAFT ARTICLES SUBMITTED BY THE
INTERNATIONAL ASSOCIATION OF PENAL LAW (E/CN.4/NGO/213)
17. Barbados suggested that the definition should Be extended to cover acts of individual citizens. This would harmonize with article III which treats the. offences of incitement, participation, attempt and complicity as acts of torture.
13. For Barbados, the phrase "such conduct" in paragraph (a) should Be changed to "acts of torture".
19. Morocco considered that it was not always easy for a public official to have "reasonable belief" that torture had Been committed by one of his subordinates. It would also be difficult to prove that such a "senior public official" had "reasonable belief" or even knowledge that torture had been committed since, as far as the police, for example, were concerned, an interrogation frequently took place in private between the police officer and the suspect or accused, without' witnesses. Furthermore, the legal repercussions of the article seemed to imply a kind of immediate collective responsibility of public officials, whereas law always decreed the individuality of offences and therefore of penalties.
20. According to Morocco, article III of this draft could give rise to a broad interpretation and lead to a general responsibility of officials, or even of 'the" State, without even requiring that an investigation be carried out and before a decision on such responsibility is taken.
21. State responsibility could not be involved in such a situation because a. crime involving torture committed by the official of a State could not be attributed, to that State except within the strict framework of the rules of international law governing State responsibility. None of the bilateral or multilateral international legal assistance agreements made such a hasty judgement concerning State responsibility, and it was therefore extremely desirable that the terms of the article be carefully amended. The article should not, as it appeared to do, endorse a procedure which was as clearly contrary to legal practice as trial by hearsay, on the contrary it should insist that a preliminary legal investigation
be carried out..- It should also set out clearly the criteria for defining principal guilt and complicity, including (in view of the spirit of the article) passive complicity.
22. This article corroborates Moroccan penal legislation; a confession is
obviously only one of the many elements of conviction. It is a matter to be ' ...
evaluated freely by the judge and it may fail to convince him (article 288 of the
Moroccan Code of Criminal Procedure.) Furthermore, a confession obtained lawfully
merely supports scientific or material evidence or proof by witnesses. However, if
a confession is obtained by torture, it should be rejected and will be without effect. Moreover, a police officer who uses torture during an interrogation will incur administrative and penal sanctions.
E/CN.4/1314/Add.4 page 6
23. Article VIII puts forward a new idea; the application of periods of limitation
for acts and penalties classified, as crimes to all prosecution or punishment of
torture even if an offence is involved. Moroccan law has adopted an interesting
solution which consists in doubling the penalties applicable to all arts committed
by a public official that are classified as torture (article 231 of the Penal Code):
at the same time article 690 of the Code of Criminal Procedure states that "when
a prison sentence of over five years is handed down, the period of limitation shall be equal to that of the sentence", thus the period of limitation provided for under ' Moroccan law for offences involving torture is longer than the normal limitation period.
24. For Barbados, the definite article "a" in paragraph 1 should be changed to
"one Contracting Party" in the first instance, and "another Contracting Party " in
the second instance. The word "shall" should be inserted before the word
"undertake" in paragraph 2.
25. This article states that torture is not a political offence. For Barbados
this is inconsistent with the definition in. article II where acts of public officials
26. Barbados suggested, that additional" provisions should be made with reference to
the arbitration of disputes on the interpretation, application or implementation of
the Convention as a necessary step before the institution of proceedings in the
International Court of Justice. This article could also be amplified to include
clauses relating to the appointment to an independent arbitration committee of
persons mutually agreed to by Contracting Parties.
IV. COMMENTS ON A REVISED TEXT OF THE SUBSTANTIVE ARTICLES SUBMITTED BY SWEDEN (E/CN.4/WG.l/WP.l)
27. Italy considers that the basic idea underlying the draft Convention should
be the prevention of the practice of torture in all countries and by every means.
However, it points out that some of the provisions of the draft could conflict with
bilateral undertakings which are already binding upon certain States parties to the
Convention, particularly with regard to extradition,- expulsion and return. The
Convention would in fact be applicable only between States parties and could not, have
a direct effect on agreements it made between those States and "third" States which
. might conflict with it. In such a case, a State party could find itself in the position of being unable to observe the Convention against torture without violating bilateral undertakings previously sub-scribed to.
E/CN.4/1314/ADD.4 page 7
28. Italy therefore suggests a new wording for article 3 which, while providing for a number of specific undertakings "by States acceding to the Convention, would make it possible to ensure the following;
(a) that undertakings arising from this Convention should he considered to take precedence, between member States, over those arising from existing agreements that conflict with it;
(b) that States parties should not subscribe to new agreements conflicting with the Convention:
(c) that States parties should proceed to modify any agreements to which they subscribed before the Convention on Torture, if implementation of those agreements could entail a violation of the principles embodied in the Convention.
29. In order to prevent disputes between the States concerned on the question of jurisdiction over the punishment of an offence involving torture, Italy suggests that the wording of article 5 should be amended and expanded as follows, so as to establish an order of priority for the various jurisdictions; "Each Member State shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 above in the following cases and according to the order of priority indicated below; (paragraphs (a), (b) and (c) unchanged),' (d) when the excused is on its territory".
Article 7, paragraph 2
30. Italy considers that the phrase "Each State Party shall ensure that..." does not
appropriately express the idea of the automatic legal link which should exist between
the criminal act of torture (considered as an offence por se or in connexion with
another offence) and the initiation of criminal proceedings against those responsible. .
Italy would therefore prefer a more binding formula which, in view of the criteria.
establishing a State's competence to judge the case (article 5), would be as
follows; "Each State shall provide that..."
31. Italy proposes that the text following the words "by its competent Authorities"
should be deleted, since it is not only pleonastic in view of the contents of
articles 2, 3 and 7, but might also give rise to the doubt that other forms of
treatment could be acceptable.
32. In view of the need to assess any damage that may have been suffered and to
ensure settlement through the legal channel, Italy suggests the following
amendment; "Each State Party shall ensure that any one who considers himself to
be the victim of an act of torture, as defined in article 1, has the right to
institute legal proceedings to prove that damage has in fact been suffered and to
have that damage assessed, with a view to possible compensation".
E/CN,4/l314/Add,4 page 8.
Articles 17 and 18
35. Italy agrees that, on the basis of this Convention, the States-parties should' entrust to the Commission on Human Rights the task of ensuring that it is observed in practice. There is nothing in either internal or international law to prevent on international legal instrument .from entrusting such, a task to an already existing intergovernmental body. Such a solution would prevent the subsequent proliferation of procedures and bodies, particularly if it was accompanied by an appropriate statement recognizing the Commission's right to investigate, although that would mean increasing the Commission's workload - a. situation which could, be alleviated by strengthening its structure.
34, Italy would like to see drafted as soon as possible the clauses of the Convention, not yet provided for in the Swedish draft, on the settlement of any disputes that may arise between States concerning the interpretation and application of the Convention.