Torture et mauvais traitements

Analysis

Torture is a grave crime against human dignity, and it can never be accepted. Even in situation of war, emergency or other threats to the stability of a State, torture and ill-treatment are always prohibited. The prohibition of torture is absolute and non-derogable at all times.
Torture and ill-treatment can take many forms: they can be physical or psychological and can result both from intentional acts (threats, beatings, rape, etc.) and omissions (such as the failure to provide a detainee with food or water). Treating a detainee humanely and with respect cannot be dependent on the material resources available in the State party.

States have a positive obligation to adequately secure the physical and psychological integrity and the well-being of all detainees. This responsibility includes a duty of care and the adoption of preventive measures to protect the most vulnerable detainees, as well as to reduce the risk of violence by other inmates. 

In some prisons, there is a trend to outsource logistics, services and operations to private companies. Outsourcing can concern various areas, from catering, prison shops, work, to detainees’ transfers and custody services. In some contexts, prisons may be entirely run by private companies. Whatever the sector and degree of privatisation of prisons, the State remains fully accountable in case of a violation of the prohibition of torture and ill-treatment.

Defining torture

According to the UN Convention against Torture, the definition of torture contains three main elements: (1) an “act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person” , (2) “for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind” and (3) “inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity”.

Some acts alone are recognised to be torture by the jurisprudence: they include, without being exhaustive, waterboarding; “falanga” (beating on the sole of the feet); the so-called “Palestinian hanging” (suspension by the arms with the arms tied together behind the back) and rape. 

Torture and ill-treatment are notions that evolve over time: a treatment that was once considered to amount to cruel or inhuman treatment can be re-qualified as torture. Additionally, other criteria, such as the vulnerability of the person, the environment, as well as the cumulative effect of various factors must be taken into account to determine whether a particular case amounts to ill-treatment or torture.

Defining cruel, inhuman or degrading treatment or punishment

Unlike torture, cruel, inhuman or degrading treatment or punishment are not defined in any international treaty. International tribunals and treaty bodies therefore attempted to clarify the concept. First of all, the notions of “cruel” and “inhuman” are synonymous and used interchangeably. Under international human rights law, cruel or inhuman treatment must cause mental or physical suffering of a serious nature, intentionally or negligently, and a public official must be implicated directly or indirectly. The purposive element is not necessary for an act to qualify as cruel or inhumane. It may be committed in one single act/omission or can result from an accumulation of several acts/omissions. Single acts that may not constitute ill-treatment individually could constitute cruel or inhumane treatment or punishment in conjunction with others.

Cruel or inhuman treatments can be: pain and suffering experienced by family members of a victim of enforced disappearance; denial or misuse of medical treatment; improper conditions of detention; intentional use of physical force, etc.

Degrading treatments are different from the notions of cruel or inhuman treatment or punishment. What is essential in the concept of degrading treatment is not the severity of the pain but the aim to humiliate or debase the person.

Degrading treatment can be: grossly humiliating an individual before others; not allowing a prisoner to change his/her soiled clothes; inappropriate conditions of confinement, etc.

Throughout the database, the terms “ill-treatment” and “cruel, inhuman or degrading treatment” are used interchangeably.

States’ key obligations under the UN Convention against Torture

States must take effective legislative, administrative, judicial or other measures to prevent torture (article 2). To this end, it is particularly important that effective procedures and safeguards are in place in prisons. Key safeguards include prompt access to a lawyer, access to a doctor, access to a judge, the right to information, complaints procedures, well-kept registers and effective monitoring mechanisms. 

State must ensure that education and information regarding the prohibition against torture are fully included in the training of law enforcement personnel, medical personnel, and other persons who may be involved in the custody, interrogation or treatment detainees (article 10).

States must make torture an offence under national law (article 4). The crime must be in full compliance with article 1 of the UN Convention against Torture. Criminalisation of torture alone is not sufficient and States must either prosecute or extradite an alleged offender if he/she is present in its jurisdiction (article 5.2). However, it is prohibited to transfer a person to another State if a real risk exists that he/she will be subjected to torture (article 3).

States must keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of detainees (Article 11).

States must make sure that allegations of torture and other forms of ill-treatment are investigated, even in the absence of a complaint from the victims. It is crucial that investigations be independent, prompt, thorough, and effective (article 12).

Any statement taken by coercion must be rejected in any proceedings, except against a person accused of torture as evidence that the statement was made (article 15). Case-law has clarified that when an allegation is made that a statement was given under duress, it is the responsibility of the State to prove that the statement was not coerced and given freely.

States must adopt legislation to provide victims with effective remedy and the right to obtain adequate and appropriate redress. A range of criminal, civil and/or procedural remedies should be made available by the State, and not just as a civil complaint against the perpetrator, and be effective in practice (article 14).

Examples of situations that can amount to torture and ill-treatment under certain circumstances

Solitary confinement: prolonged solitary confinement, particularly in conjunction with poor material conditions (such as lack of ventilation, size of the cell, or lack of privacy), could amount to ill-treatment or even torture.  

Overcrowding: situations of overcrowding, in conjunction with poor material conditions and/or inappropriate medical care could amount to ill-treatment or even torture. 

Incommunicado detention:  Incommunicado detention is generally understood as a situation of detention in which an individual cannot notify his/her detention to family members, an attorney, or an independent physician. While there is no prohibition under international law of incommunicado detention per se, there is significant consensus that it can give rise to serious human rights violations and should thus be prohibited. It is recommended that family members should be notified at the latest 18 hours after a relative’s deprivation of liberty.

Body searches: due to their intrusive nature, all body searches can be degrading, even humiliating. They are permitted as long as they are strictly necessary to order or maintain security in a prison and when they respect the dignity of the persons. Some practices may in themselves be humiliating, such as forcing a detainee to strip naked in the presence of a prison guard of the opposite gender. Invasive searches (cavity searches) which involve a risk of physical or psychological injury, should be prohibited.

Means of restraints: resorting to means of restraint is a serious measure which must always be justified by preventing imminent harm to the person, a third party or the surroundings and it must be proportionate to such aim. Strapping a person for a prolonged period on a fixation bed, when he/she is not showing any sign of danger to himself/herself or his/her surroundings would amount to inhuman and degrading treatment.

Force-feeding:  force feeding should not be allowed provided that the detainee is capable of understanding the consequences of refusing food and is capable of forming a rational judgement. Handcuffing a detainee of sound mind to a chair and forcing him/her to swallow a rubber tube would amount to inhuman and degrading treatment.

Torture and persons in situations of vulnerability
children

Children, because of their age and stage of development, are particularly vulnerable and exposed to the risk of being ill-treated or even tortured. The authorities must take all necessary measures to prevent harassment, bullying and other forms of violence from fellow detainees. A failure to protect children from violence may constitute ill-treatment. It is therefore important that specific and effective safeguards are in place for children.  Children are not a homogenous group: girls, children with disabilities and LGBTI children are among the most vulnerable and are therefore at higher risk of being ill-treated or tortured.

LGBTI persons are often discriminated against on the basis of their sexual orientation or gender identity and are therefore at higher risk of being tortured and ill-treated, particularly in countries where homosexuality and/or transgenderism are reprehended.

LGBTI detainees are more exposed to being harassed, humiliated and abused (including sexually) by staff and fellow inmates. The authorities have the obligation to protect them from such abuse, while noting that isolating LGBTI persons from the rest of the prison population is not a long-term solution and could in itself constitute ill-treatment.

disabilities

Persons with disabilities, whether physical or mental, are exposed to higher risks of discrimination and victimization that can lead to ill-treatment and even torture, both from staff and fellow detainees. The authorities must provide them with additional protection and failing to do so may be conducive to ill-treatment or torture.  The authorities should adapt the procedures and the physical facilities within the prison to ensure to persons with disabilities the enjoyment of their fundamental rights on an equal basis with others detainees. The denial of reasonable accommodations can evolve into or amount to ill-treatment.

foreigners
minorities

Foreigners and detainees from minorities and indigenous people may not have a good command of the main spoken language and/or be less familiar with procedures or regulations which render them more vulnerable to abuse. They are also more exposed to the risk of being discriminated against, and to be victims of racist or other forms of violence, including by prison staff. Those factors can be conducive to situations of ill-treatment and torture.

women

Women in detention face a high risk of ill-treatment and torture, and are exposed to gender based violence. Such violence is directed against a woman because she is a woman or it affects women disproportionately. Gender based violence includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and others.

One of the gravest forms of gender based violence is rape. Women may be subjected to rape in places of deprivation of liberty as a means of coercion to elicit confessions, to humiliate and dehumanize them or merely to use the opportunity of their absolute powerlessness. Rape may also take place in the form of sexual services which women prisoners are forced to provide in return for access to goods and privileges or for enjoying their most basic human rights. In addition, sexual abuse of women by male prisoners may take place, sometimes with the complicity of prison guards. In this context, rape has been internationally recognized as a form of torture.

Lack of attention to women’s gender specific needs can evolve into or amount to cruel, inhuman or degrading treatment or punishment.

women
children

Due to their age, gender and small numbers, girls comprise one of the most vulnerable groups in detention, and are therefore at higher risk of ill-treatment and torture. Most prison systems around the world lack specific policies and programs to accommodate for their unique needs, including their needs for protection. Where mixed gender staffing is used, serious abuse by male staff in juvenile girl prisons has been reported, demonstrating the extent of girls’ vulnerability in detention. Girls may also be abused by older women and female staff.