International Commission of Catholic Prison Pastoral Care
I am pleased to write this
short foreword to the basic Guide for Chaplains Confronted with Torture
prepared by the International Commission of Catholic Prison Pastoral Care.
Priests and lay pastoral workers are often able to go to places in prison inaccessible
to human rights activists and even to monitoring agencies. Moreover, they
usually enjoy great trust amongst the prisoners. This booklet sets out the
dilemma of the dual obligations that chaplains have, similar to physicians
assigned to penal institutions. Their primary responsibility is to the person
who has confided in them and to be able to continue to minister to the
incarcerated. However, they also have an obligation to prevent and speak out
against torture.
This Guide reminds the
reader that the prohibition against torture is absolute. It describes a range
of physical and psychological acts that could be considered torture. It also
lists a variety of actions that a prison pastoral care worker might take in
response to the observation of torture, including resort to the international
human rights machinery. The Guide also recognizes the importance of preventive
programs, collaboration with the prison authorities in improving conditions,
and working together with other human rights or religious organizations. It is
hoped that this straightforward practical Guide will form the basis of sensitization classes and
discussion groups in training courses.
I am particularly happy to
endorse this Guide as I have great respect for the work of the members of the
International Commission on Catholic Prison Pastoral Care. The ICCPPC has
signed a memorandum with the UN Special Rapporteur on Torture and Other Cruel,
Inhuman, or Degrading Treatment. I look forward to other forms of practical
cooperation in countries of special concern.
Manfred Nowak
UN Special Rapporteur on
Torture and Other Cruel, Inhuman or Degrading Treatment
Vienna, Austria, February
2010
Foreword to Guide for
Chaplains
Confronted with Torture
This document was prepared
to serve as a guide for Chaplains and Prison Pastoral Care Workers to prevent
and combat torture and other cruel, inhuman and degrading treatment and
punishment, discovered in prison. Based on experiences of good practice of
prison chaplains (e.g., Brazil) and international documents pertaining to
torture, it aims to help pastoral workers take practical steps in the
prevention and combating of torture and other forms of ill-treatment.
Introduction
At the XIIth World
Congress of the International Commission of Catholic Prison Pastoral Care in
Rome in September 2007, the United Nations Special Rapporteur on Torture and
other cruel, inhuman or degrading treatment or punishment, Prof. Manfred Nowak,
reported on his activities. During the subsequent discussion among the more
than 200 participants from 62 countries from all five continents, it turned out
that prison chaplains, in several parts of the world, are confronted with the
tragic fact that torture takes place in the prisons where they work.
A memorandum of
cooperation has subsequently been signed between the ICCPPC and the Special
Rapporteur to combat this problem. How to react in such a situation: How to
proceed “No one shall be subjected to torture or to inhuman or degrading
treatment or punishment”
The prohibition of torture
is absolute. There can be no justification for it. Torture is condemned in the
Universal Declaration of Human Rights, in detail in the United Nations
Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment
(UNCAT), by regional human rights treaties and by national law.
His Holiness Pope Benedict
XVI has stressed: “Public authorities must be ever vigilant, eschewing any
means of punishment or corrections that either undermine or debase the human
dignity of prisoners. In this regard, I reiterate that the prohibition against
torture cannot be contravened under any circumstances” (Address to participants
at the XII ICCPPC World Congress, 6 September, 2007).
Why should religious
representatives be involved in prevention and combat of torture and other
ill-treatment in places of detention?
Prison pastoral care
workers are among the few who can continuously enter into closed institutions
like prisons, for this reason they must be conscious of their human rights
responsibilities. The action of the Church in the prevention of torture rests
on two grounds:
• The basic understanding
that promoting the dignity of human life is part of the gospel. Thus religious
assistance must include upholding human rights.
• A passive attitude
towards acts of torture could be well interpreted as acquiescence and over time
such an attitude legitimises human rights violations as socially acceptable.
Here, an possible dilemma
must be faced, because often as long as the members of the religious groups who
visit prison do not draw attention to the possible violations of human rights,
they can coexist peacefully with the prison staff, but once they start speaking
out against ill-treatment they may become persona non grata to the
prison administration.
The greatest possible
objectivity of prison pastoral workers in relation to the administration of the
prison is fundamental to ensure the effectiveness of their complaints.
Moreover, the situation can become even more difficult when the chaplain is
considered a member of the staff (even paid by the prison administration),
because he/she might not be able to speak out against the government without
any consequences. In this situation, even though the prison pastoral workers
are not obliged to compromise their objectivity, it may be better that the
local pastoral committee make an alliance with other organizations to pursue
any grievances to preserve the prison pastoral worker’s primary mission of care
and visitation.
It is clear that there is
no simple answer which applies under all circumstances. Always, common sense is
required to find an appropriate response. It depends on many factual
circumstances: are the acts of torture committed by some few officers or are
they accepted as part of the whole system? How strong is the position of the
church and of prison chaplains in the context of the national structures? Is
there a functioning national system to report on and prevent torture? How can
the victim best be protected? Is there a dual responsibility problem with
respect to his/her status as a civil servant? The duty toward to his clerical
authority?
The secret of
confessional?
The protection of the
victim must always be considered first and foremost but also the possible
prevention of future acts of torture and the need to make the perpetrators
accountable must be taken into account,as well as the prison pastoral worker’s
own safety.
Torture, under the UN
Conventions, has a clear definition. Torture is not bad prison condition.
Torture is the intended physical and/or psychological harm done to others with
the intention of punishing them or getting information from them.
However, torture has many
faces and, besides direct violence against the victim, can consist of not
providing the necessary food or water or not allowing the doctor to see a sick
or injured inmate. Psychological violence, threatening execution or being kept
in dungeon like conditions can also be considered torture.
What is torture, what is
cruel, inhuman or degrading treatment or punishment in a legal sense? Following
the basic definition of the United Nations Convention Against Torture (19 the
term “torture” means any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person 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, when such pain or suffering is inflicted
by, at the instigation of, or with the consent or acquiescence of a public
official or other person acting in an official capacity. It does not include
pain or suffering arising only from, inherent in, or incidental to, lawful
sanctions. Following this definition, three essential elements are needed:
1. The inflicting of
severe mental or physical pain or suffering
2. By or with the consent
or acquiescence of the state authorities
3. For a specific purpose,
such as gaining information, punishment or Intimidation
Cruel, inhuman or
degrading treatment or punishment consists of only two elements:
1. Intentional exposure to
significant mental or physical pain or suffering
2. By or with the consent
or acquiescence of the state authorities Torture is, thus, distinguished from
other forms of ill-treatment by the severe degree of suffering as well as by
the need for a purposive element.
Torture can be grouped
into physical and psychological.
The physical torture
method most often employed are beatings with batons, sticks, whips, stones;
kicking; throwing against a wall; electroshocks; suffocation; repeated dunking
in water; burning with cigarettes; or exposure to extremely low or high
temperatures. A number of torture techniques do not leave visible physical
marks on the body (fierce beatings on soles of the feet), but nevertheless can
have a detrimental effect upon the internal organs as well as on the
psychological integrity of the victim. It also includes acts of sadism
committed by prison guards for no particular purpose.
Psychological torture
includes the intentional deprivation of food, water, sleep, and sanitary
facilities, sensory deprivation, as well as absolute communication prohibition,
intimidation techniques such as forced presence during torture of other people,
threat of execution or a simulated execution, continuous humiliation and
terrorisation, maintenance of physical stress positions, being left naked or
standing in the elements for extended periods or being kept in dungeon-like conditions
(deprived of air and light). Sexual violence (rape, beating of scrotum,
insertion of rods in vagina or anus) are both physical and psychological
torture, even if threatened or directed to loved ones. Even the extended
wearing of restraint devices or the deliberate placement of vulnerable
prisoners in overcrowded cells of violent inmates can be considered torture if
done for punishment or intimidation. It is therefore important to be familiar
with the UN Standard Minimum Rules for the Treatment of Offenders.
Of course, there are many
prisons which might be considered inhuman or degrading. Many acts of violence,
if not most violence, are committed by inmates against their fellow inmates.
Protecting vulnerable inmates against violence of other inmates is an
indispensable task of the penal system. The State has a responsibility for safe
conditions for all inmates (including homosexuals) and the conduct of prison
personnel, and may have to put a prisoner in protective custody (for example,
paedophile offenders).
Torture can also happen in
non-punitive custodial settings: juvenile detention facilities, old people’s
homes or psychiatric institutions (where a general inhuman environment and
overuse of restraint devices should be considered), military institutions and
places of detention for foreigners (camps for refugees and internally displaced
persons). Particular attention must be given to vulnerable prisoners with
special needs (disabled prisoners, the elderly, or mentally challenged) and
women, who are often sadistically abused.
However, for the purpose
of the reporting torture, an element of discrimination or specific
victimisation is generally considered necessary.
In some countries,
corporal punishment (even amputation) is legal. This remains controversial, as
is the treatment of mentally ill persons in some closed institutions, even
in developed countries. The lawful execution of prisoners has been considered
by some (the method used or the long, indeterminate periods on death row) as
cruel and inhuman treatment.
Non-judicial executions by
law-enforcement officers are universally condemned, including those undertaken
by inmates on the orders of or with the collusion of officers. Abusive handling
of suspected terrorists has also aroused international condemnation.
Particularly where the situation is ambiguous (or controversial), it is most
important to provide consistent information establishing the essential
elements.
In the case of persons who
have been tortured as well as in cases of prisoners who have disappeared, the
role of prison pastoral workers can be very important in terms of comforting
relatives but also helping to establish evidence of circumstances of
disappearance, searching for the truth collecting evidence and establishing
guilt.
Who practises torture?
According to the
Convention Against Torture (CAT) definition, only public officials can act as
torturers, or at least, the torture must be done with their acquiescence.
Nevertheless, commonly a pastoral worker faces situations where inmates are
subject to acts akin to torture by other inmates. There are two different
situations here. The inmate who tortures another inmate could be doing it on
behalf of a correctional officer. In that case, as the act meets the CAT
definition, the public official and inmate have both committed acts of torture
and must eventually be subject to a trial. But in the case of conflicts among
inmates that end up in acts similar to torture without the consent of
correctional officers, another crime either of assault or battery, rape,
murder, etc. may have been committed and should be prosecuted. Only in very few
jurisdictions have superintendents been successfully prosecuted for maintaining
inhuman conditions; nonetheless prison pastoral workers may seek to point out
such conditions to the church hierarchy, legislators, or international bodies,
always in compliance with the general principles below.
Why does torture take
place in prison?
Torture is still a means
widely used to get confessions or information from alleged offenders and
inmates, despite its proven ineffectiveness. More often, torture occurs as a
result of conflicts between correctional officers and inmates, so it commonly
serves as a punishment for insubordinate inmates.
The fact that the prison
population is behind
bars makes them invisible to public scrutiny, unless the
prison pastoral care workers and others ensure that proper complaint procedures
are followed and information is carefully kept for administrative and
investigative bodies, judges and other supervisory institutions, including
international bodies and human rights non-governmental organizations, thereby
combating impunity.
When does torture take
place?
Many cases of torture take
place during the arrest, either at the victim's house, on the street, in order
to make the alleged offender provide information, or to induce terror
predisposing the prisoner for interrogation at the police station. Torture also
often occurs during transfer of the prisoner from one facility to another. It
is thus important to make contact with those just arrived at the prison.
Where in prison are the
tortured prisoners more likely to be found?
Torture can occur in any
spot within the prison. Therefore, accessing every place of the facility where
inmates are kept is fundamental to ensure that no torture is being done.
Especially the infirmary room, arrival section, the disciplinary and isolation
cells are the most likely places to encounter the victims of torture.
What is to be done? –
General principles
First and foremost: protection
of the victim.
If a prisoner says he has
suffered torture from a guard, the prisoner might face several risks. One is
that he might not be able to establish proof and he himself is then prosecuted
for spreading false information. Another risk is that the guards might “punish”
him for his denunciation.
If a prison chaplain is
told by an inmate that he was tortured, the chaplain should proceed only with
full accord of the inmate. If the inmate tells him about atrocities but at the
same time asks the chaplain not to use this information, this can lead to a
conflict of conscience for the chaplain.
In principle, the
protection of the victim should be considered first and foremost. What is to be
done next, depends on many circumstances:
how credible is the report
of the inmate? is clear evidence given? Are there witnesses? is it a single
case or part of a bigger problem? is the prison system on the whole
human-rights oriented and the reported case a singular phenomenon, or is it
part of a torture “epidemic”? was the case reported to other people as well? to
a human rights group? to a lawyer? And most importantly what exactly has the
pastoral care worker personally witnessed?
Networking
A “single fighter” is
always much more vulnerable than a group. If torture is a more widespread
phenomenon in a given context, it is advisable to look for “allies”: church
superiors, religious communities, prison officers who are human-rights
oriented, members of civil society, the media, human rights groups, politicians,
government officials. In many countries there are National Commissions for the
Prevention of Torture or Ombudsmen.
The prevention of torture
and monitoring of places of detention can happen on several levels: by official
mixed commissions, NGOs, and individuals who report to official organs. In the
Philippines, for example, prison chaplains are running projects on awareness
raising and on the application of international standards in the field of
administration of justice. Prevention and threat of exposure are as important
as the prosecution of the torture acts already committed (which also has a
preventive aspect).
Principle of subsidiarity
If acts of torture are to
be denounced, this should be done (only with the prisoner’s permission and his
request) at the next level of authority within the prison system, which seems
to be able and willing to solve the problem. Where acts of torture are
committed by a single guard (or a small group) and the prison chaplain knows
that the prison governor does not accept these acts and is willing to react
properly, the chaplain should contact the governor in that matter. If the
governor has no credible and strong position, then the governor's superior in
the administration might be the right person to address. The national order of
responsibility shall normally be observed, particularly if the chaplain is part
of the government structure. At the same time, the chaplain should inform his
clerical superiors. However, if appropriate national action cannot be expected,
international procedures are available.
Of course, the prisoner
has a right to utilize the internal complaint procedures and to notify the
judiciary, the prison inspectorate and the prosecutor’s office.
Acting in accordance with
legal principles
Legal principles shall
always be observed. Hearsay or rumors are not sufficient to act upon. Credible
evidence is necessary. Corroboration is better. Details are important. False
accusations must be avoided as well as being manipulated for personal,
political or criminal purposes. On the other hand, cooperation in an
investigation or judicial trial where personal knowledge (unless given in a
confessional) or eyewitness testimony is required should voluntarily be given,
unless the process is clearly unfair and prejudicial.
Practical guidelines
• Do no harm: certain
dangers are inherent to human rights and pastoral work. However, prison
chaplains should exercise great care and not create unnecessary risks for those
they leave behind
• Exercise good judgment
• Respect the authorities
and the staff in charge
• Inform the pastoral
prison care coordinator of the problem discovered and follow the agreed way of
proceeding
• Be clear about the
limitations of your work; do not make promises that you are unable to keep
• Informed consent: as a
rule, no representation must be made without an informed consent of the person
providing information (victim, relatives, witnesses). Informed consent means
fully understanding the benefits as well as the possible risks or negative
consequences of any action taken.
• Security: interviews
should be conducted in a way that renders it impossible for the authorities to
identify the source of information (e.g., in places with a small number of
detainees, all inmates should be interviewed the same way).
• All conversations with
inmates should be conducted in private, beyond the hearing of officers.
How to proceed when
someone complains of having been tortured
If it is believed that
there is the possibility of finding a torture victim in prison, it is best to bring
along other persons, a doctor or even a trusted official authority to
corroborate the facts of the case.
The team should bring
along material to register the testimony such as notebooks, complaint forms,
and if lawful, photograph or video cameras, and tape recorders, as this will
help to ensure an effective investigation and punishment.The individual case
approach implies listening to the victim, seeing the wounds and empathising
with his/her sufferings.
Prejudice as well as
gullibility should be avoided, in other words, respect what the alleged victim
says, but do not make assessments or judgments yet. At this preliminary stage,
there are no truths or lies, just an allegation that needs to be investigated.
It does happen that a
prisoner will make up a story by saying that he has been tortured to achieve
something, such as being transferred to another section of the prison or even
to another prison where he wants to go. The false accusation of torture could
even be a plot to start a riot or a disturbance in collusion with part of the
staff against the prison administrator. The pastoral care worker must be
cautious of being used by prisoners to achieve objectives other than an
investigation on torture.
The case should not be
publicised on the basis of hearsay, without investigating as much as the
pastoral worker can about the accusation;
nor should he or she
become a stepping stone to achieve goals other than the preservation of the
dignity of human life.
Listen to the victim
carefully and ask him/her to describe the events in as much detail as they can.
If the pastoral worker finds the case is indeed credible, it is recommended to
ask whether the victim wants to keep quiet or bring the case before an
investigation body and/or correction authorities. If the victim wants to take
the case to both disciplinary and criminal investigative bodies, the pastoral
worker may encourage him to fill out an official complaint form.
If there are witnesses at
hand, they might also sign the form and give their own written version of the
events.
It is important to take
notes in great detail such as the victim's full name, the alleged perpetrators'
name, time, place, date of the alleged event, if there are wounds and on which
part of the body they can be found, how the events happened, and if the
prison's director was aware of the events and any subsequent actions taken.
What information should be
recorded?
Interviewing a victim of
torture is an extremely sensitive task, as it requires finding the balance
between collecting accurate, good quality information and respecting the
victim’s difficulty to talk about a traumatic experience.
The following points can
only serve as a guideline; requirements have to be adapted in each particular
context. However, the account given should answer the following questions:
1. WHO did WHAT to WHOM?
2. WHEN, WHERE, WHY and
HOW?
The information collected
should reach a high level of detail and not leave unexplained gaps or
inconsistencies.
The forms filled out and
signed by the victim and the witnesses can in many countries be accompanied by
a formal, clear, and short statement of the prison pastoral care agency. The
prison pastoral care representatives may describe the facts that they have seen
and heard from the victim and the witnesses; the description should be in the
conditional tense when summarizing the allegations. If the pastoral care agency
hands over the formal complaints to the proper authority, the representative to
whom the document was given should countersign a copy which will indicate it
was received and serve as a record for the archive of subsequent actions taken.
It is important to create
a databank as a general register of all complaints that the prison pastoral
care has received. This may also be useful for international human rights
organisations and other organs concerned with torture.
One of the first things to
ensure, if there is a obvious evidence of torture, is to demand a medical
examination to establish the facts for the investigation and guarantee the
accountability of the perpetrators.
The official charge of
accusation is undertaken by the prosecutor, so the pastoral worker is only an
informant, the person who brings the complaints from the prisoners and exerts
pressure to start an investigation or a trial.
It is important to try and
ensure that the victim will be out of harm's way before carrying on with the
case. Often, the torturer and the custodian are the same person, so it becomes
a problem because a grievance can aggravate the situation of the victim.
If this is the situation,
the pastoral care worker should take the complaint confidentially and then only
to an independent body of investigation.
Depending on the legal
framework, it may be wise for the pastoral agent to obtain a proxy from the
victim for him/herself or a lawyer to move the case along; it enables them to
speak on behalf of the victim and makes them safe from any retraction by the
victim or anyone saying they were not allowed to intervene on behalf of the
victim…
It is equally as important
to denounce a case of torture as it is to follow up the situation with the
victim and also to pursue the further phases of investigation and trial. In
addition, compensation and restitution are, of course, important to the person
who has suffered. As for the victim,
returning to see him/her, helps to prevent retaliation and gives them more
confidence in the prison pastoral care system.
Regarding the actual
investigative or judicial proceedings, because of the lack of conclusive
evidence as well as corporate collusion among criminal justice personnel, in
other words the prosecutors and the judges sometimes tend to resist charging
public officers, making it difficult to proceed with most of the cases.
Therefore, it is very important to observe the acts of the authorities during
the investigation and the trial.
Collaboration: Building a
coalition of a country’s human rights organisation
New alliances – especially
with unexpected partners – can strengthen the efforts of human rights advocates
in multiple ways. It is said “Win over a former adversary and you have not only
gained an ally you have lost an opponent”. Open channels of communication that
had been closed and you lessen the possibility of conflict and abuse. Build
relationships with groups outside your sector and lend credibility to your
cause and attract new audiences. Reach across international borders and you
build an alliance that is stronger, more flexible, and has more political
clout.
Strategic collaboration
can make advocates more prepared, more powerful and more representative of the
communities they serve. It can give them legitimacy in the mainstream, in media
and in government. When the human rights advocates have a powerful, diverse
array of allies and are no longer working in isolation, their work is much more
difficult to assail.
How to implement effective
measures to prevent Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment
There are two important
approaches to be pursued for the eradication of torture. One is combating the
torture by speaking out when it occurs and bringing the grievances before the
court or other organs in charge of investigating the cases (i.e., reporting
findings to the judiciary or any other investigative body).
The other one is by
preventing the practice of torture. Constantly visiting the prisons is
indubitably one important way to prevent torture. On one hand it is a warning
to the prison staff that someone cares about the integrity of the prisoner, that the violation
of their human rights will not be tolerated and that the perpetrator will be
held accountable. On the other hand it is an alert to prisoners that an
external organism is there to ensure their integrity.
The regular presence of
the pastoral worker in prisons is already a means to prevent torture, as long
as he is acknowledged as someone who will not permit any ill-treatment against
inmates.
Advocacy for improvement
of prison conditions at the highest levels of government can be very effective
in the long term. The advocacy group can submit proposals and put pressure on
the state authorities to create legal and regulatory frameworks to prevent and
eradicate torture and other inhuman conditions and ill treatment. For Catholic
prison pastoral workers, it is a good idea do this in alliance with the Bishops'
Conference and also by joining other organisations committed to human rights.
Sometimes outrage must be expressed in clear and strong terms in response to
scandalous cases.
Persuasion tactics
Persuasion tactics are
used to end human rights abuses without confrontation, without demonising the
abusers or those facilitating abuse.
Often abusers simply need
to be spoken to in order to end their participation in human rights violations.
While intervention tactics
are often associated with denunciations and protests, some of the most dramatic
successes in ending human rights abuses have resulted from negotiation and
persuasion. Through pressure that is at times quiet and other times more
practical, advocates are able to make significant improvements in human rights,
often very quickly. These tactics use non-adversarial relationships with
governments, even offering concrete assistance to end the abuse or inhuman
conditions. They put respected community leaders in the forefront of
negotiations or education efforts. They operate in an atmosphere of
collaboration.
People and relationships
are an essential resource to consider when evaluating the range of tactics
available.
Who is close to your target? Who has their respect? Who
can influence your target?
Different levels of
action, national – international
National level
The range of national
procedures depends on the country in question, but could include
• Criminal proceedings
(aimed at convicting the perpetrator)
• Civil proceedings
(seeking financial compensation from the perpetrator)
• Disciplinary proceedings
of the perpetrator
• Special procedures
before national human rights commissions, ombudsman institutions, etc.
It is important to keep in
mind that international procedures for individual complaints generally require
the exhaustion of national remedies! It is important to examine closely the
national situation and suggest appropriate reforms on basis of a systemic
diagnosis. The action plan should cover state institutions, including
parliamentary representatives, non-governmental organizations and the media.
Pastoral workers can also
push for the legislation and independent supervisory bodies, in order to
implement the Optional Protocol of the UN Convention Against Torture, OPCAT
(and other regional conventions) as well as to impact public policy, promote
human rights standards and to establish appropriate institutions.
Joint training of
correctional officials and pastoral care workers can lead to a better mutual
understanding, a better knowledge of international requirements, best practices
and appreciation of the difficulties of implementing change within the system.
Public education against
human rights abuses and the consequences of illtreatment of prisoners is very
important to create an atmosphere of support for the prevention of torture,
even in times of acts of terrorism. Special courses should be offered to
police, corrections staff, public prosecutors and judges in the use of force,
in the handling of arrested persons, proper care of prisoners,
conflict mediation and the use of alternatives to imprisonment to avoid
overcrowding and degrading treatment. In addition the use of Internet-based
continued education and simulation exercises can provide new knowledge and
insights.
The new Internet technologies
offer the opportunities for wide-based networking and resources to pastoral
care workers advocacy groups. ICCPPC and other human rights NGOs offer
wide-ranging information and resource links (www.iccppc.org).
International level
What can you achieve by
reporting allegations of Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment to international human rights mechanisms?
• Drawing attention to a
particular situation for the international community to take action
• Initiate constructive
dialogue towards long-term improvements in a country
• Combating impunity,
holding perpetrators to account
• Seeking remedy for an
individual victim
Conditions to ensure
effectiveness in the struggle against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment in prison:
• The right to religious
assistance must be reinforced by law,botherwise the religious programs will
always be precarious and could be revoked anytime by the administration of the
prison.
• The local prison
pastoral care workers should be able to act objectively vis-à-vis the prison
system;
• No undue restrictions
shall be imposed as to where the prison pastoral worker can access the prison
facility: The right to religious assistance implies that all the places of the prison
will be accessed to check if there is a prisoner there in need of religious or humanitarian
assistance. Wherever an inmate might be, there the chaplain must go!
Annex I: Excellent guides
include:
Camille Giffard, The
Torture Reporting Handbook, How to document and respond to allegations of
torture within the international system for the protection of human rights,
Human Rights Center, University of Essex, 2000. Available in Arabic, English,
French, Spanish and Russian.
Association For The
Prevention of Torture (APT): Monitoring places of detention: a practical guide
for NGOs.
UN Office of the High
Commissioner of Human Rights, Istanbul Protocol, Manual on the Effective
Investigation and Documentation of Torture and Other Cruel, Inhuman or
degrading treatment or Punishment, Professional Training Series no. 8, New
York, Geneva,
2001.
UN Office of the High
Commissioner for Human Rights, Human Rights and Prisons – A manual on Human
Rights Training for Prison Officials, Professional Training Series no. 9,
Geneva 2003.
Amnesty International,
Combating Torture: A manual for action, London, 2003, available on
www.amnesty.org in English.
The Center for Victims of
Torture, New Tactics in Human Rights – A Resource for Practitioners,
Minneapolis – Minnesota, USA, available on www.newtactics.org
Interights - Prohibition
of Torture an Inhuman or Degrading Treatment or Punishment under the European
Convention on Human Rights (Article 3) – Manual for Lawyers – London 2007
Annex II:
International level
The range of instruments
and procedures at the international level is very wide. A distinction can be
made by considering the origin and the function of the body in question.
1. Treaty bodies:
Treaty bodies are created
by an agreement (named treaty, convention, covenant or charter) between a
number of states. They are created to supervise State obligations stemming from
the treaty. For instance, the United Nations Convention against Torture set up
the Committee Against Torture, as competent for checking a country’s respect
for those obligations. Consequently the treaty body’s mandate is limited to
states that are party to the treaty.
2. Non-treaty mechanisms:
These mechanisms are not
created for supervising a specific treaty.
They might be a political
body consisting of state representatives (e.g., United Nations Human Rights
Council), or they are set up by a resolution of such political bodies.
Therefore it is automatically competent for examining the situation of all
states that are members of United Nations. For instance, the Special Rapporteur
on Torture was created by a resolution of the predecessor of the United Nations
Human Rights Council ( the United Nations Commission on Human Rights).
Functions of the mechanism
1. Reporting functions:
Certain treaty bodies
receive periodic state reports, giving account of the conformity with the
obligations stemming from the respective treaty.
The treaty body evaluates
the situation and provides the country with its comments and recommendations.
The presentation of the reports and the treaty body’s recommendations are
public and accredited NGOs participate by presenting alternative information to
the state reports.
2. Complaint procedures:
The complaint procedures
have proved to be a very effective instrument.
The procedure is a judicial
or litigation-style process, which aims to establish whether or not, a state
has violated his human rights of an individual granted by the relevant treaty.
Reporting mechanisms in
the United Nations System
The Human Rights Council
complaint procedure
In 2007 the Council
established a new Complaint Procedure to address consistent patterns of gross
and reliably attested violations of all human rights and fundamental freedoms,
in any part of the world, under any circumstances.
Special Rapporteur on Torture
The Special Rapporteur is
an independent expert, who presents an overall picture of the practice of
torture to the UN Human Rights Council.His mandate covers all countries,
irrespective of whether a State has ratified the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment. The mandate
comprises three main activities:
transmitting urgent
appeals to States with regard to individuals reported to be at risk of torture,
as well as communications on past alleged cases of torture; undertaking
fact-finding country visits; and submitting annual reports on activities. To
fulfill his mandate the Rapporteur receives information from individuals, NGOs
and governments.
The UN Treaty Bodies
Treaty bodies were created
to supervise the implementation by state parties of their obligations of
certain UN human rights treaties.
Committee Against Torture
The Committee Against
Torture (CAT) is the body of independent experts that monitors implementation
of the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment by its State parties.
All States parties are
obliged to submit regular reports to the Committee on how the rights are being
implemented. States must report initially one year after acceding to the Convention
and then every four years. The Committee examines each report and addresses its
concerns and recommendations to the State party in the form of “concluding
observations”.
Optional Protocol to the
Convention against Torture and other Cruel, Inhuman Treatment or Punishment,
OPCAT
The Optional Protocol to
the Convention against Torture and other Cruel, Inhuman or Degrading Treatment
or Punishment is an important addition to the United Nations Convention Against
Torture (1984). It establishes an international inspection system for places of
detention modeled on the system which has existed in Europe since 1987 (see
below Council of Europe).
The Optional Protocol
establishes a system of regular visits to places of detention conducted by
independent international and national bodies, which, together, conduct regular
visits to all places of detention in all States Parties and recommend to the
authorities establishment of effective measures to prevent torture and
ill-treatment and improve the conditions of detention of all persons deprived
of liberty.
At the international
level, the OPCAT creates a new international preventive body, the UN
Subcommittee for the Prevention of Torture. At the national level, States
Parties have to create or designate National Preventive Mechanisms (NPMs)
within one year of ratification of the OPCAT.
To see the state of
ratifications and for further reading: www.apt.ch
In addition to the
reporting procedure, the Convention establishes three other mechanisms through
which the Committee performs its monitoring functions: the Committee may also,
if the State in question has made a special declaration under Art 22 CAT,
consider individual complaints or communications from individuals claiming that
their rights under the Convention have been violated, undertake inquiries, and
consider interstate complaints.
Human Rights Committee
The Human Rights Committee
is the body of independent experts that monitors implementation of the
International Covenant on Civil and Political Rights by its State Parties. All
State Parties are obliged to submit regular reports to the Committee on how the
rights are being implemented. States must report initially one year after
acceding to the Covenant and then whenever the Committee requests (usually
every fouryears). The Committee examines each report and addresses its concerns
and recommendations to the State party in the form of "concluding observations”.
In addition to the
reporting procedure, the First Optional Protocol to the Covenant gives the
Committee competence to examine individual complaints regarding alleged
violations of the Covenant by State Parties to the Protocol.
The reporting system of
the European Committee for the Prevention of Torture The Committee was founded
on the basis of the European Convention for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment (1987). The CPT members are
independent and impartial experts from a variety of backgrounds.
The CPT visits places of
detention (e.g., prisons and juvenile detention centres, police stations,
holding centres for immigration detainees and psychiatric hospitals), to see
how persons deprived of their liberty are treated and, if necessary, to
recommend improvements to States.Under the Convention, CPT delegations have
unlimited access to places of detention and the right to move inside such
places without restriction. They interview persons deprived of their liberty in
private and communicate freely with anyone who can provide information. The
recommendations which the CPT may formulate on the basis of facts found during
the visit,
are included in a report
which is sent to the State concerned. This report is the starting point for an
ongoing dialogue with the State concerned.
The CPT has two guiding
principles:cooperation and confidentiality.
Cooperation with the
national authority is at the heart of the Convention, as the aim is to protect
persons deprived of their liberty rather than to condemn States for abuses. The
Committee therefore meets in camera and its reports are strictly confidential.
Nevertheless, if a country fails to cooperate or refuses to improve the
situation in the light of the Committee's recommendations, the CPT may decide
to make a public statement.
Complaint Procedure - The
European Convention on Human Rights
The European Court of
Human Rights in Strasbourg was established under the European Convention on
Human Rights of 1950 to monitor compliance by Signatory Parties.
The Inter-American Court
and Commission on Human Rights In contrast to the European human rights system,
individual citizens of the OAS member states are not allowed to take cases
directly to the Court:
individuals who believe
that their rights have been violated must first lodge a complaint with the
Commission and have that body rule on the admissibility of the claim. If the
case is ruled admissible and the state deemed at fault, the Commission will
generally serve the state with a list of recommendations to make amends for the
violation. Only if the state fails to abide by these recommendations, or if the
Commission decides that the case is of particular importance or legal interest,
will the case be referred to the Court. The presentation of a case before the
Court can therefore be considered a measure of last resort, taken only after
the Commission has failed to resolve the matter in a noncontentious fashion.
In addition to ratifying
the Convention, a state party must voluntary submit to the Court's jurisdiction
for it to be competent to hear a case involving that state.
The African Commission and
Court on Human and Peoples’ Rights
The African Commission on
Human and Peoples' Rights, in existence since 1986, is established under the
African Charter on Human and Peoples' Rights (the African Charter) rather than
a Constitutive Act of the African Union. It is the premier African human rights
body, with responsibilityfor monitoring and promoting compliance with the
African Charter. The African Court on Human and Peoples' Rights was established
in 2006 to supplement the work of the Commission, following the entry into
force of a protocol to the African Charter providing for its creation.
The Special Rapporteur on
Prisons and Detention Conditions in Africa
See
http://www.achpr.org/english/_info/prison_mand..html
Where to find further
information:
Frequently Asked Questions for treaty body
complaint procedures:
Torture Reporting
Handbook:
Special Rapporteur on
Torture:
United Nations treaty body
database
Human Rights Council
Committee against Torture
Association for the
Prevention of Torture:
European Committee for the
Prevention of Torture
Annex IV: OPCAT
The Optional Protocol to
the United Nations Convention against Torture
and other Cruel, Inhuman
or Degrading Treatment or Punishment, adopted 18 December 2002 by the UN
General Assembly, is a valuable international instrument aimed at preventing
the practice of torture and
other forms of
ill-treatment against persons deprived of their liberty. This document
establishes, for the first time within the realm of existing human rights
mechanisms, a dual preventive system of regular visits to places of detention
to be carried out by a UN International Subcommittee and by one or several
independent national preventive bodies designated by each State Party. The
Optional Protocol counts has received the necessary ratifications and/or
accessions required for its entry into force on 22 June 2006.
The International Catholic
Commission of Prison Pastoral Care has been strongly advocating for the adoption
of this document in a number of countries. The role of its office in Brazil,
for example, deserves particular mention as it has been actively involved in a
variety of activities to promote the ratification and implementation of the
Optional Protocol in
that country.
OPCAT Country Status
Ratification and Implementation There are currently 44 States Parties and 27
Signatories to the Optional Protocol., http://www.apt.ch/ - links:
OPCAT Country Status
(Info)
OPCAT Ratification Status
National Preventive Mechanisms
The initial draft of this
guide was prepared by:
Fr. Gunther Zgubic –
Chairperson,
Human Rights Commission,
ICCPPC
Dr. Michael Platzer–
ICCPPC Advisor
Dr. José de Jesus Filho –
Lawyer, Prison Pastoral Care,
Bishop´s Conference of
Brazil
Dr. Manuel Roiss –
Secretary, Working Group
Dr. Christian Kuhn –
President, ICCPPC
Subsequent inputs were
obtained from a number of
experts to whom we express
our deepest gratitude
The printing of this
booklet was made possible
by the Austrian Ministry
of Justice and
the non-governmental
organization
“Hope behind Bars”
