Lawyers and Criminal Justice Administrators.pdf - People's watch

Resource Materials for
Lawyers and Criminal Justice Administrators
Compiled by
Mr. Subhradipta Sarkar
Ms. Archana Sarma
(Law Researchers, People’s Watch – Tamil Nadu)
Edited by
Mr. Henri Tiphagne
(Lawyer & Executive Director, People’s Watch – Tamil Nadu)
This publication has been produced with the assistance of the European Union and Friedrich Naumann Stiftung
(FNSt). The contents of this publication are the sole responsibility of People’s Watch – Tamilnadu and can in no
way be taken to reflect the views of the European Union or FNSt.
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Human Rights Intervention Series: 33
Resource Materials for Lawyers and Criminal Justice Administrators
October, 2006
National Project on Preventing Torture in India
Contribution : Rs.100/-
Published by:
People’s Watch- Tamil Nadu
6, Vallabhai Road, Chokkikulam,
Madurai-625002
Phone: + 91-452-2539520, 2531874
Fax: + 91-452-2531874
Email: info@pwtn.org
Website: www.pwtn.org
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People’s Watch – Tamil Nadu
People's Watch – Tamilnadu (PW-TN) is a human rights organization which has been
actively engaging itself in the protection and promotion of human rights in Tamil Nadu since
1995. Now, after ten years of work, the organization has expanded its concerns throughout
the country.
People's Watch - Tamilnadu seeks to create a society free from human rights violations and
discrimination. This vision finds its expression in two ways. First, PW-TN endeavors to hold
the State accountable to its citizens for chronic abuses of their rights. Second, it attempts to
spread a human rights culture which may be able to safeguard welfare and the freedom of
all people.
Programs at People's Watch - Tamilnadu:
1) Building Monitoring and Intervention Capacity
People’s Watch – Tamilnadu works to transfer skills and build the capacity of other groups in
civil society. By creating human rights cells, individuals can play a significant role in defense
of human rights. PW-TN hopes to identify and train more than ten thousand human rights
monitors. These people will be drawn from different parts of Tamil Nadu and will represent
diverse minorities, castes, backgrounds, religions, and political parties. They will learn to
conduct fact-finding missions and document human rights violations, as well as to engage in
local intervention and community-based rehabilitation. They will prepare various documents,
including the Annual Report on Human Rights Violations, a compilation of violations such as
custodial deaths, rapes and torture.
2) Human Rights Campaigns
People’s Watch – Tamilnadu works to found a “Citizens for Human Rights Movement”
(CHRM) that engages women and men from a broad spectrum of society’s political parties,
movements, castes, religions, trade unions, and civil society groups. The Movement will form
taluk, district and state committees with male and female coordinators to protect and
promote human rights throughout the state. PW-TN will work towards an independently
functioning CHRM and sustain its ongoing effectiveness.
People’s Watch – Tamilnadu has also been working to promote a Campaign Against Torture
in Tamil Nadu. In addition to observing the International Day of Solidarity with Victims of
Torture on June 26th, the Campaign plans to spread an anti-torture campaign to other
states.
3) Rehabilitation Center for Torture Victims:
People’s Watch – Tamilnadu operates two facilities that provide security and support to
survivors of human rights violations. Located in Madurai and Mettur, the centers employ a
holistic, rights-based approach to rehabilitation, involving individuals from diverse sectors of
society in the recovery process. Centers provide psychological, medical, legal and social
services to survivors and their family members, and through educational assistance and
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economic development projects, they promote the socio-economic rehabilitation
communities affected by torture. Finally, the centers encourage networking among survivors
and between organizations and movements advocating for the rights of survivors.
4) The Institute for Human Rights Education
Following the tremendous success of its first Human Rights Education Initiative launched in
Tamilnadu schools in 1997, PW-TN is now introducing Human Rights Education in schools
across India. The plan targets eleven states for the next three years and envisions advocacy
and lobbying efforts with the state and Central Governments. This project will coincide with
the United Nations’ World Program for Human Rights Education in Schools (2005 – 2008).
The Institute also produces training programs for government officials, teachers, students,
and other members of the educational sector. As part of this process, PW-TN will publish
human rights workbooks in Tamil, English and other local languages. PW-TN will also offer
human rights intervention training programs to various strategic groups.
5) Communication: Documentation, Publication and Media
People’s Watch – Tamilnadu uses every possible means to influence public opinion and
foster public awareness of human rights. It documents and catalogues all violations of
human rights in Tamil Nadu and maintains a library of human rights publications, fact-finding
reports and other media for use by researchers and organizations. Additionally, PW-TN is
creating a publishing house committed exclusively to human rights literature. Through its
efforts, PW-TN hopes to create a culture of human rights across all segments of Indian
society, thereby empowering all people to protect and promote the human rights of
everyone.
6) Tsunami Relief Effort
Shortly after news of the tsunami’s destruction was first broadcast to the world, PW-TN
began contributing to the ongoing relief efforts. It provided direct assistance to over twenty
thousand survivors in coastal communities and coordinated the many organizations eager to
join the relief effort. PW-TN volunteers conducted two Rapid Impact Assessments in nine
coastal districts. These sought to identify the most dire community needs, examine the longterm
outlook on livelihoods, and assess provision of basic amenities such as water,
sanitation, and healthcare facilities.
People’s Watch – Tamilnadu played a significant leadership role in the formation of the
Tsunami Relief and Rehabilitation Coordination for Tamil Nadu and Pondicherry (TRRC), a
collaboration of many concerned organizations seeking to ensure that aid is delivered as
quickly and effectively as possible within the State and Union. Additionally, and in
collaboration with the SOCO Trust (Madurai) and Human Rights Law Network (Chennai),
PW-TN (Madurai) created the Tsunami Legal Action Committee, which continues to fight for
the legal rights of affected communities with respect to issues such as shelter,
compensation, land, and insurance.
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The National Project on Preventing Torture in India
European Union supported National Project on "Preventing Torture in India: from
Public Awareness to State Accountability"
European Union has formally approved this national level project in the last week of
December 2005 and it comes into effect from January 2006 for a period of three years. The
aim of the action is to initiate and model a national campaign for the prevention of
torture in India, with a deliberate focus on torture practices routinely employed by police.
This project will be carried out in 10 States: Tamil Nadu, Kerala, Karnataka, Andhra
Pradesh, Rajasthan, Orissa, Uttar Pradesh, Madhya Pradesh, West Bengal, and Bihar.
The overall goal is the prevention and reduction of torture in India, where police abuses
remain an entrenched and often routine law enforcement strategy. And its scope will include
interventions against instances of assault and physical abuse, custodial death, custodial
rape, threats and psychological humiliation, and deprivation of food, water, sleep, and
medical attention.
Protect potential survivors of torture, particularly those belonging to vulnerable and
marginalized communities,
Highlight individual cases of torture as and when they occur,
Improve institutional response to instances of torture by demanding state
accountability,
Advance an ethic of responsibility and restraint among law enforcement officers,
Educate and enlist professional groups such as lawyers, social activists, doctors,
psychiatrists, journalists, and teachers in the campaign to prevent and eliminate
torture,
Raise public awareness of torture as an unlawful and widespread abuse of police
powers,
Promote favourable policy outcomes in the form of anti-torture legislation and fulfilling
of commitments to existing international treaties.
Two stages will drive the action’s overall agenda: first, the formation of ten state-wide
networks to monitor instances of torture and intervene on behalf of individual survivors ;
and second, a national awareness campaign that uses this monitoring data to generate
public and professional condemnation of torture practices within a wider culture of rights,
improve enforcement of and adherence to existing constitutional guarantees, and lobby for
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CAT ratification and stricter domestic laws in India’s Parliament and the individual state
legislative assemblies.
The district-by-district torture monitoring will be conducted by a corps of 100 torture
monitors across the ten states, drawn from local affiliates coordinated by FNF’s partner
People’s Watch Tamil Nadu. Torture monitors will investigate abuses as they occur in realtime—interviewing
survivors , witnesses, and police, collecting documents, and mobilizing
local media coverage. These fact-finding missions will subsequently provide the basis for
targeted legal interventions, primarily in support of individuals from marginalized groups,
performed by staff lawyers in each state.
The national awareness campaign coordinated by project staff will employ the raw data
generated by these monitoring activities to drive media coverage, public education, and
lobbying activities devoted to bringing greater visibility to the prevalence of torture in India.
Reporting on individual instances of abuse will be matched by activities that aim to broadly
educate public audience as to their rights and the legal resources available to them. On a
policy level, the campaign will push to increase these protections. It will also include at its
core a series of state-level awareness conferences targeting the various professions
implicated in the elimination of torture: lawyers, social activists, doctors, psychiatrists,
journalists, and teachers. Police themselves, as well as members of the judiciary, are also to
be treated as intermediaries, receiving awareness training that addresses them as
constructive partners rather than adversaries in this project.
We have established an office in each project state, headed by a state director, and assisted
by a part-time lawyer and three program associates. In all fifty districts in which we work, one
or two District Human Rights Monitors will engage in fact-finding missions and assist
survivors of human rights abuses. In each state, civil society organizations in one taluk will
undergo an intensive awareness program and serve as a model in uncovering best
practices. This nationwide project is headed by a National Director, based in Madurai,
Tamilnadu, and a National Program Officer, located in New Delhi.
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ACKNOWLEDGMENT
This volume is a compilation of resource materials for the National Awareness Training
programs, a part of the EU-FNST-PWTN National Project on Preventing Torture in India:
from Public Awareness to State Accountability", is meant for professionals including lawyers,
criminal justice administrators, doctors, psychiatrists, teachers, civil society organizations,
law enforcement officials, media, political parties etc. Valuable inputs have gone into the
production of this volume from different sources. The publishers have acknowledged all
those sources in the appropriate places of the volume. We are indebted to the individuals
who gave their time and expertise in our accomplishment. We would like to acknowledge
with appreciation and place on record the names of all those who have contributed in their
different capacities.
We owe our special debt to Mr. Henri Tiphagne, Executive Director, People’s Watch- Tamil
Nadu (PW-TN) for undertaking the task of editing the entire work. We would like to express
our gratitude to Mr. Subhradipta Sarkar and Ms. Archana Sarma, Law Researchers, PW-TN
for the arduous task of compiling the materials.
Mr. S. Anand Kumar and Mr. N. Jeyaraman of the Computer Unit, PW-TN, undertook the
mammoth task of alignment and designing. Mr. Jordan Fletcher, Fellow of the American
India Foundation, extended his precious support in compiling the materials. Dr. K.Mathiharan
and Mr.M.S.Giri, State Director of Andhra Pradesh (EU-FNST-PWTN National Project on
Preventing Torture in India) both have provided us with valuable materials and constant
support. Thanks are due as well to Ms. Sabine Nierhoff and Mr. David Green. It would not be
an exaggeration to mention that the volume could not been completed without their hard
work and enthusiasm.
We will be failing in our duty unless we offer our gratefulness to the interns, namely,
Ms.Reena Arora, Mr. Arvind Kumar, Mr. Sherin Daniel, Kinaat Sisodia, Mr. Vinayak Mishra,
Mr.Gaurav Shukla and Mr. Kishore Narayan for their contribution with their research
documents which have been incorporated in this volume. We further wish to thank
Ms.C.Gandhimathi, Ms. N. Mehari Nigar, Ms. J. Stella Maragathamani, Mr. S. Senthil Kumar
and Mr.Karunanidhi of the Documentation Unit, PW-TN for extending their full co-operation.
In preparing this volume we took into consideration comments made by the State
Coordinators and the State Directors of this Project. Last but not the least, we acknowledge
all of them for their valuable suggestions.
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TABLE OF CONTENTS
I
GENERAL ASPECTS OF TORTURE
A) Basic concept of torture
B) Universal jurisdiction of torture
II
III
DOCUMENTATION OF ALLEGATIONS OF TORTURE
NATIONAL LEGAL REGIME IN COMBATING TORTURE
A) Relevant provisions of Indian laws
B) Selected Supreme Court Judgments
C) Supreme Court Guidelines on Lawful Arrest
D) Supreme Court Guidelines on Sexual Harassment a Workplace
E) National Human Rights Institutions
F) Selected NHRC Guidelines
IV
V
INTERNATIONAL MECHANISM AND PROCEDURE
ROLE OF LAWYERS AND JUDGES
A) Role of judges and prosecutors in protecting detainees and
criminal suspects from torture
B) Prosecuting suspected torturers and providing redress to the
victims of torture
VI
HUMAN RIGHTS DEFENDERS
APPENDIX - I
A) Universal Declaration of Human Rights
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B) Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, 1984
C) Optional Protocol to the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment
D) India’s Status with respect to various International Instruments
APPENDIX - II
Model Questionnaires and Forms for Submission of
Communications to Special Rapporteurs and Working Group
APPENDIX - III
A) Declaration of Human Rights Defenders
B) Guidelines for submitting allegations of violations against
Human Rights Defenders
APPENDIX - IV
Contact Details
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I. GENERAL ASPECTS OF TORTURE
A) Basic Concept of Torture
1.1. What is torture?
1.1.1. Introduction
Deciding whether or not a set of facts amounts to torture can be tricky. There are certain
types of treatment which most people will instinctively recognize as being unacceptable.
There are others, however, which are less clear-cut, or which may depend on cultural
factors. It is important to remember that when you submit an allegation to an international
mechanism, you are seeking to show that the facts constitute torture or ill-treatment in a
legal sense, not merely in your opinion. This section will examine what this might mean, and
what the implications are for someone wishing to submit an allegation.
1.1.2. What does international law say about the meaning of torture?
The basic definition of torture is that contained in the UN Convention Against Torture
(1984). According to Article 1(1), the term 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 or 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."
From this definition, it is possible to extract three essential elements which constitute torture:
• The infliction of severe mental or physical pain or suffering
• By or with the consent or acquiescence of the state authorities
• For a specific purpose, such as gaining information, punishment or intimidation
Torture is an emotive word, but one which should not be used lightly. As you can see from
the above definition, torture is characterised and distinguished from other forms of illtreatment
by the severe degree of suffering involved. It is therefore important to reserve the
term for the most objectively serious forms of ill-treatment.
Cruel treatment, and inhuman or degrading treatment or punishment are also legal terms
which refer to ill-treatment causing varying degrees of suffering less severe than in the case
of torture. Forms of ill-treatment other than torture do not have to be inflicted for a specific
purpose, but there does have to be an intent to expose individuals to the conditions which
amount to or result in the ill-treatment. The essential elements which constitute ill-treatment
not amounting to torture would therefore be reduced to:
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• Intentional exposure to significant mental or physical pain or suffering
• By or with the consent or acquiescence of the state authorities
In order for the international bodies to make a distinction between the different forms of illtreatment
and assess the degree of suffering involved, they must take the particular
circumstances of the case and the characteristics of the particular victim into account each
time. This makes it difficult to identify the exact boundaries between the different forms of illtreatment,
because those circumstances and characteristics will vary, but it does make the
law more flexible because it allows it to adapt to the circumstances. The important point to
remember is that all forms of ill-treatment are prohibited under international law. This means
that even where treatment is not considered severe enough (in legal terms) to amount to
torture, the state may well still be found to have violated the prohibition on ill-treatment.
1.1.3. What does this mean in practical terms?
International law gives us two main guidelines to apply in assessing whether or not a set of
facts amounts to torture:
• The essential elements contained in the definition of torture should be supported by
the facts.
• Torture may be distinguished from other forms of ill-treatment by the severe degree
of suffering involved and the need for a purposive element.
1.1.3(a). Essential elements
You will see from the extract of the UN Convention Against Torture cited above that the legal
definition of torture is quite abstract in nature. It does not refer to specific types of illtreatment
or provide a list of prohibited techniques. Instead, it sets out a number of essential
elements which are required for an incident to be considered as a possible case of torture in
the legal sense. The elements necessary for treatment to amount to ill-treatment other than
torture are similarly abstract. These elements may be recalled as follows:
• WHAT WAS DONE?: Severe physical or mental pain or suffering has been
deliberately inflicted (torture) or intentional exposure to significant mental or physical
pain or suffering has occurred (ill-treatment other than torture).
• WHO DID IT?: The state authorities either inflicted this suffering themselves, or
else knew or ought to have known about it but did not try to prevent it.
• WHY WAS IT DONE?: The suffering was inflicted for a specific purpose, such as
gaining information, punishment or intimidation (torture only).
What exactly these elements consist of is left for interpretation by the international
monitoring bodies. They have the responsibility of developing consistent interpretations of
the definition of torture and other forms of ill-treatment and must make sure that they apply
the same standards in each case. This means that you, as an individual or organisation
(NGO), do not have to decide whether the ill-treatment inflicted on an individual amounts to
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torture or something else, but by documenting facts which support the essential elements,
you provide evidence for the international bodies to decide.
1.1.3(b). Degree of suffering
Torture is distinguished from other, lesser, forms of ill-treatment by the severe degree of
suffering involved. This is perhaps the most difficult aspect of torture to assess. The two
other essential elements are to a large extent objectively verifiable - it is generally objectively
possible to establish that the perpetrator had a link with the state, or that the torture was
inflicted for a specific purpose. The nature and degree of suffering experienced by an
individual are another matter. They may depend on many personal characteristics of the
victim - for example, sex, age, religious or cultural beliefs, health. In other cases, certain
forms of ill-treatment or certain aspects of detention which would not constitute torture on
their own may do so in combination with each other.
Certain types of treatment appear objectively to fall into the category of torture - for example,
electric shocks to the genitals, or the pulling out of fingernails. Torture is not, however,
limited to such familiar examples - it encompasses many forms of suffering, both physical
and psychological in nature. It is particularly important not to forget about psychological
forms of ill-treatment - very often these can have the most long-lasting consequences for
victims, who may recover from physical injuries yet continue to suffer from deep
psychological scarring. Forms of ill-treatment which have been found to amount to torture,
either alone or in combination with other forms of treatment, include:
• Falaka/falanga: beatings on the soles of the feet
• Palestinian hanging: suspension by the arms while these are tied behind the back
• Severe forms of beatings
• Electric shocks
• Rape
• Mock executions
• Being buried alive
• Mock amputations
There are, however, also many 'grey areas'which do not clearly amount to torture, or about
which there is still disagreement, but which are of great concern to the international
community. Examples include:
• Corporal punishment imposed as a judicial penalty
• Some forms of capital punishment and the death-row phenomenon
• Solitary confinement
• Certain aspects of poor prison conditions, particularly if combined
• Disappearances, including their effect on the close relatives of the disappeared
person
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• Treatment inflicted on a child which might not be considered torture if inflicted on an
adult
One particularly significant factor which may affect an assessment of the severity of the
degree of suffering experienced is that of culture. It is important to be aware that different
cultures, and indeed individuals within a particular culture, have different perceptions of what
amounts to torture. This can be relevant in two ways - on the one hand, it can mean that
behaviour which is thought of as torture by a culture or individual victim, may not normally
constitute torture in the eyes of the international bodies. On the other hand, it can mean that
treatment which is consistently considered by the international community to amount to
torture is not viewed as such by the person who has been subjected to it. For example, in
one country, beatings, even severe beatings, may not be considered torture but rather
normal practice, whereas tearing a woman's clothing (without more) may be. It may even
happen that treatment which is considered unlawful at the international level is actually
lawful at the national level. In such cases, you should not be dissuaded from reporting the
allegation, because the international bodies will be guided by international law. Remember
that even where treatment is not found to amount to torture, it may still amount to another
form of prohibited ill-treatment.
In order to make sure that possible cultural variations are taken into account when
submitting an allegation of torture, you should:
• Explain the significance of cultural attitudes to certain types of treatment in your
allegations and reports, because this may affect the international body's assessment
of the degree of suffering.
• Make sure not to omit any details of the treatment to which a person has been
subjected, because facts which you may not consider important may actually be very
relevant to the allegation.
• Remember that victims too may leave out details which they do not think are
important, and that they should be encouraged to be as complete as possible about
what has happened to them.
You must show that:
• Severe physical or mental pain or suffering has been deliberately inflicted
(torture) or that intentional exposure to significant mental or physical pain or
suffering has occurred (ill-treatment other than torture).
• The state authorities either inflicted this suffering themselves, or else knew or
ought to have known about it but did not try to prevent it
• In the case of torture (though not required for other forms of ill-treatment), the
suffering was inflicted for a specific purpose, such as gaining information,
punishment or intimidation
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1.2. How does torture happen?
1.2.1 Who are the perpetrators?
As is emphasized in the section describing what is torture, it is necessary that the behaviour
in question be carried out by, or with the approval of, a representative of the authority in
power. This means that any state official could potentially be involved in torture or illtreatment.
However, considering the common purposes of torture, which may be to obtain
information during an interrogation, or, increasingly, to intimidate the population as a
whole in the face of insurrection or disturbance, it is unsurprising that the principal
perpetrators are those officials involved in the criminal investigation process, and those
responsible for the security of the state.
This means that those most likely to be involved in torture and other forms of ill-treatment
include:
• The police
• The gendarmerie (in countries where this institution exists)
• The military
• Paramilitary forces acting in connection with official forces
• State-controlled contra-guerrilla forces
But could also include :
• Prison officers
• Death squads (torture following disappearance and preceding killing)
• Any Government official
• Health professionals - doctors, psychiatrists or nurses may participate in torture
either by act (direct involvement which may include certifying someone fit for
interrogation) or by omission (falsifying medical reports or failure to give appropriate
treatment)
• Co-detainees acting with the approval or on the orders of public officials
In addition, torture often occurs in the context of armed conflicts, particularly internal conflicts
involving forces in opposition to the authorities in power, and which control sections of the
territory. In such circumstances, torture and other forms of ill-treatment may also be inflicted
by:
• Opposition forces
• The general population
1.2.2 Who are the victims?
Anybody can be a victim of torture - man or woman, young or old, religious or atheist,
intellectual or farmer. Very often the determining factor may be membership of a particular
political, religious, or ethnic group or minority. However, no-one should be considered
immune.
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There is a tendency among those who report allegations of torture and other forms of illtreatment
to concentrate on information relating to "political prisoners", those involved in
politics and usually in opposition to the authorities in power. However, common criminals,
particularly those accused of serious crimes, are very typically the victims of torture, perhaps
for the purpose of obtaining information or a confession, or simply for the purpose of
extortion or intimidation. Where the purpose is to spread terror among a population, all are
equally at risk. It is very important not to give the impression that only "political prisoners" are
at risk, by focusing on them to the exclusion of other victims who may also be very much at
risk.
1.2.2 (a) The identity of the victim is important because:
• Specific groups, such as children, women, the elderly, or religious persons, may be
more vulnerable to the effects of ill-treatment, making it easier to consider that the
degree of suffering is severe enough to amount to torture.
• It helps to identify patterns of abuse being directed at a particular group of victims.
• Additional international mechanisms which are specific to particular groups can be
used - e.g. UN Special Rapporteur on Violence Against Women.
1.2.2 (b) Specific examples where the identity of the victim may be of particular
relevance include:
• Children: These are considered an especially vulnerable group. In particular, it
should be emphasized that the effects of a certain type of ill-treatment on a child may
be different to the effects which would be suffered by an adult undergoing the same
treatment. It should also be noted that one form of ill-treatment which may have very
far-reaching effects on a child is being made to witness the torture of a parent or
close relative. Similarly, threatening or forcing parents to witness the torture of their
child may have severe psychological effects on the parents.
• Gender specific torture: Rape as a method of torture is not exclusive to female
victims, but it is nonetheless commonly used in a gender-specific form, as a means
of emphasising feelings of weakness and subordination in the victim or in the
community. Cases of male rape may also be under-reported for many reasons,
among which is the lack of awareness of the interviewer. Further examples where the
gender of the victim may be relevant include the case of pregnant women, who are
especially vulnerable, and women of child-bearing age, who may become pregnant
as an aggravated effect of rape.
• Dalits and Tribals: The practice of untouchability in India also amounts to torture,
cruel and inhuman treatment so far the communities like the Dalits and Tribals are
concerned. The Dalits and Tribals constitute a part of large vulnerable section of the
society. It has to be placed on record that when the caste background of the victims
of torture is analyzed, the inevitable conclusion one reaches can only be that majority
of the victims happen to be either the Dalits or tribals in India. Their position in the
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class hierarchy coupled with their economic condition categorizes them as one of the
most vulnerable section of the society. Although atrocities against them are covered
under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,
1989, very often the acquiescence of the State is seen to have an important role to
play in the non-implementation of the Act and Rules thus leading us to a premise that
the practice of untouchability and caste discrimination may also amount to torture in
certain circumstances.
• Religious persons: There are examples where ill-treatment has been found to
amount to torture or inhuman treatment on account of the religious character of the
victim e.g. devout persons subjected to religious taunts; the plucking of the beard of
an Orthodox priest.
• Ill-treatment targeting a person's profession: In one case, psychological torture
was found to have occurred where a piano player was forced to undergo simulated
amputations of his hands.
1.2.3 Where is torture most likely to occur?
Torture may take place in any location, especially in countries where there is a widespread
climate of violence. High-risk locations are those where interrogation is likely to take place,
such as police and gendarme stations, and any other place of detention, especially pre-trial
detention.
While the majority of such places will be familiar to those in the local area and are official
places of detention, it is fairly common for other, unacknowledged places of detention to
exist also. These could range from installations which are regularly used for such purposes,
(e.g. a disused factory or Government buildings), to those which are used in a particular
case because they are convenient on that occasion. (e.g. a school building used as a
holding area, or even open land).
Remember that torture does not have to be confined to a place of detention and may occur
in the victim's own home or during transportation to an official place of detention.
1.2.4 When is torture most likely to occur?
Rather than focusing too firmly on locations as such, it is probably more useful to think in
terms of the stage of the process of arrest and detention at which detainees are most at risk.
• The greatest risk of torture and other forms of ill-treatment to individuals is in the first
phase of arrest and detention, before they have access to a lawyer or court. This risk
persists as long as the investigation lasts, irrespective of where a suspect is being
held.
• Incommunicado detention (i.e. detaining somebody either without
acknowledgement or without allowing them access to anyone, such as their lawyer or
family) is probably the single highest risk factor for torture because it means that
there is no external monitoring of the interrogation process. Sometimes, the security
forces only officially register the individual once they have completed the initial
interrogation.
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• Torture is usually less common in regular prisons for convicted prisoners as the
investigation process has been completed, but it should be noted that many prisons
also hold remand prisoners who are pending trial, as well as sentenced prisoners. A
risk for remand prisoners should not be ruled out, especially if the security forces
themselves run the prison or are known to be closely associated with it. The risk to
remand prisoners may not necessarily exist within the institution itself, but instead
with the possibility that they may be transferred back into the custody of the
investigating authorities.
• In both the initial detention phase and also after transfer to a prison, it should be
remembered that the conditions of detention themselves may amount to inhuman
or degrading treatment, and thus should also be documented
• Torture may also occur following abductions. In temporary abductions the victim is
released several hours or days later. In the case of a 'disappearance'evidence
indicates that the victim is held by or with the acquiescence of the authorities, yet this
is not acknowledged by the authorities. The victim may not be found, or may be
found dead. Both forms of abduction may involve torture and are used as a means of
instilling fear or intimidation in the community. While cases of disappearance involve
violations other than torture, (e.g. right to life, right to liberty and security of person)
any evidence that torture occurred during the disappearance should be documented.
The disappearance could also itself be found to amount to torture, either for the
victim or for the relatives of the victim.
SOURCE: Largely borrowed from The Torture Reporting Handbook- by Camille Giffard,
Human Rights Centre, University of Essex, with modifications
Available at: http://www.essex.ac.uk/torturehandbook/english.htm
B) UNIVERSAL JURISDICTION:
The duty of states to enact and implement legislation -
(Torture: The legal basis for universal jurisdiction)
Torture as a war crime is subject to universal jurisdiction, whether committed in an
international or non-international armed conflict. In addition, torture is also subject to
universal jurisdiction as a crime against humanity when it is committed as part of a pattern of
crimes against humanity. This section demonstrates that in addition to the obligation of
states parties under the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (Convention against Torture)(1) and the Inter-American
Convention to Prevent and Punish Torture (Inter-American Convention on Torture),(2) to
exercise jurisdiction over persons found in their territory suspected of torture abroad, to
extradite them to other states able and willing to do so or to surrender them to an
international criminal court, other states may exercise universal jurisdiction over them as a
matter of customary international law.
17

There is also support for the view that no state - whether a party to the Convention
against Torture or not - may shield a person suspected of torture from international justice,
but must either exercise jurisdiction over persons found in their territory suspected of torture
or extradite that person to a state able and willing to do so or surrender the suspect to an
international criminal court with jurisdiction over torture and the suspect. To the extent that
this principle may not yet be fully recognized as customary international law for torture,
Amnesty International believes that general principles of law, logic and morality all dictate
that it should be so recognized and implemented. Of course, the easiest way to do this
would be for those states which have not yet ratified the Convention against Torture and -
members of the Organization of American States (OAS) - the Inter-American Convention on
Torture to do so as quickly as possible and to implement their obligations in national law and
practice. As of 1 September 2001, 126 states were parties to the Convention against Torture
and nine other states had signed, but not yet ratified, the Convention.(3) As of 1 March 2001,
16 of the 35 member states of the OAS had ratified the Inter-American Convention on
Torture, without any reservations to the jurisdictional provisions, and a further four had
signed it.(4)
I. DEFINITION
Article 1 of the Convention defines the crime of torture as follows:
''For the purposes of this Convention, 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
intimidation of any kind, when such pain or suffering is inflicted by or at the instigation 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.''
The definition of torture in the Convention against Torture reflects customary
international law. The definition of torture in the Inter-American Convention on Torture is
similar.(5)
The Convention against Torture and the Inter-American Convention on Torture
require all parties to enact legislation prohibiting torture and providing appropriate
punishment.(6) Both treaties lay out detailed obligations for states parties to prevent and
punish torture and to exercise jurisdiction over suspects in their territory regardless of the
nationality of the suspect or the victim, no matter where the torture is alleged to have taken
place or to extradite suspects to states requesting extradition. The obligations related to
jurisdiction are described below.
II. UNIVERSAL JURISDICTION OVER TORTURE
All states parties to the Convention against Torture and the Inter-American
Convention are obliged whenever a person suspected of torture is found in their territory to
submit the case to their prosecuting authorities for the purposes of prosecution, or to
extradite that person. In addition, it is now widely recognized that states, even those which
18

are not states parties to these treaties, may exercise universal jurisdiction over torture under
customary international law.
A. THE duty of states parties to the Convention against Torture and the Inter-
American Convention on Torture to prosecute or extradite suspects
The jurisdictional provisions of the Convention against Torture are modelled on those of the
Hague and Montreal Conventions (see discussion of these treaties below in Chapter
Thirteen).
Duty of states parties to take necessary measures to establish jurisdiction. Article 5 (1)
of the Convention against Torture requires each state party to provide for territorial and
active personality jurisdiction over torture and permits any state party to exercise passive
personality jurisdiction ''if that State considers it appropriate''.(7) In addition, Article 5 (2) of
the Convention against Torture requires each state party to take measures to establish
universal jurisdiction over persons suspected of torture, unless it does not extradite the
suspect. It provides:
''Each State Party shall likewise take such measures as may be necessary to establish its
jurisdiction over such offences in cases where the alleged offender is present in any territory
under its jurisdiction and it does not extradite him pursuant to article 8 [concerning
extradition] to any of the States mentioned in paragraph 1 of this article.''(8)
The term ''any territory under its jurisdiction'' should be read broadly. According to the
leading commentary on the Convention against Torture, it applies to any ''territories over
which a State has factual control''.(9) The phrase ''take such measures as may be necessary
to establish its jurisdiction in cases where the alleged offender is present'' includes legislative
measures, but it is not limited to such measures. It includes executive and judicial steps to
arrest, investigate, prosecute or extradite. Several considerations support this conclusion.
First, the concept of jurisdiction under international law is not limited to legislative jurisdiction,
but also includes executive and adjudicative jurisdiction (see Chapter One, Section I.A).(10)
Second, when states have wished to specify the type of measures to establish jurisdiction,
they have expressly identified the particular measures required.(11) Third, the Committee
against Torture has interpreted the obligation under Article 5 (2) to ''take such measures as
may be necessary to establish its jurisdiction'' as extending beyond legislative measures to
judicial or executive measures. In the case of Hissène Habré, after victims submitted a
communication to the Committee urging that it require Senegal to take measures to ensure
his presence in the country pending a determination whether the decision by the Cour de
cassation that Senegal did no have jurisdiction over charges against him of torture in Chad,
the Committee on 23 April 2001, requested Senegal ''not to expel Mr. Hissène Habré and to
take all necessary measures to prevent Mr. Hissène Habré from leaving Senegalese territory
except pursuant to an extradition procedure.''(12) Given the urgency of the request, it is clear
that the Committee did not believe that the obligation of the state party was limited to
enacting legislation. Therefore, when the treaty does not expressly state what measures
19

must be taken to establish jurisdiction, the parties must have intended to require that all
types of measures be taken.
Other forms of jurisdiction not excluded. Article 5 (3) makes clear that the Convention
against Torture ''does not exclude any criminal jurisdiction exercised in accordance with
internal law.''(13) Thus, each state party remains free to exercise any form of jurisdiction
over torture and ancillary crimes permitted under international law. For example, as in the
case of states parties to the Geneva Conventions, national prosecutors and investigating
judges could exercise universal jurisdiction by opening a criminal investigation of a person
suspected of torture who was not in the forum state and request that person's extradition
Duty to ensure presence for criminal or extradition proceedings. Article 6 of the
Convention requires that each state party detain persons present in their territory alleged to
have committed torture or an ancillary crime or other legal measures to assure their
presence long enough to permit criminal or extradition proceedings to be instituted and to
conduct a preliminary inquiry into the allegations. The first paragraph states:
''Upon being satisfied, after an examination of information available to it, that the
circumstances so warrant, any State Party in whose territory a person alleged to have
committed any offence referred to in article 4 is present shall take him into custody or take
other legal measures to ensure his presence. The custody and other legal measures shall be
as provided in the law of that State but may be continued only for such time as is necessary
to enable any criminal or extradition proceedings to be instituted.''
The second paragraph states that ''[s]uch State shall immediately make a preliminary inquiry
into the facts''.(14)
Duty to extradite or submit case for prosecution. Article 7 (1) of the Convention against
Torture provides that any state party which does not extradite a person found in territory
under its jurisdiction alleged to have committed torture must submit the case for the purpose
of prosecution. It reads in full:
''The State Party in the territory under whose jurisdiction a person alleged to have committed
any offence referred to in article 4 is found shall in the cases contemplated in article 5, if it
does not extradite him, submit the case to its competent authorities for the purpose of
prosecution.''(15)
Failure to fulfil this obligation is a violation of international law. It is clear from the travaux
préparatoires that the try or extradite obligation in Article 7 (1) does not depend on a request
for extradition followed by a refusal. The drafters of the Convention expressly rejected a
proposal to impose such a requirement, which is found in some treaties and national
legislation.(16) Instead, they decided to follow the model of the Hague Convention and
similar treaties which do not impose such a requirement (see discussion of such treaties in
Chapter Thirteen).(17)
20

As in the Hague Convention model, the Convention against Torture did not establish a
system of priority among states with jurisdiction.(18) Instead, it left the decision with the state
in whose territory or territory under its jurisdiction a suspect was located whether to extradite
the suspect to another state or to submit the case to its authorities for the purpose of
prosecution. As the leading commentary on the Convention against Torture has pointed out,
Article 5 (2) is an independent basis for jurisdiction which may be invoked regardless
whether another basis of jurisdiction exists:
''Paragraph 2 [of Article 5] provides that, whether or not any of the grounds of jurisdiction
dealt with in paragraph 1 exist, a State Party shall have jurisdiction over offences of torture in
all cases where the alleged offender is present in a territory under its jurisdiction and it does
not extradite him to a State which has jurisdiction under paragraph 1.''(19)
The obligation in Article 7 (1) to ''submit the case to its competent authorities for the purpose
of prosecution'', as in similar provisions in treaties following the Hague Convention model, is
designed to safeguard the rights of the accused. Article 7 (2) makes this point clear by
requiring, first, that ''[t]hese authorities shall take their decision in the same manner as in the
case of any ordinary offence of a serious nature under the law of that State''.(20) This
requirement should not, however, be read to permit a state party to excuse itself from its
obligations to bring persons to justice for crimes under international law because of outdated
restrictions on the scope of universal jurisdiction over ordinary crimes.(21) Read together
with absolute obligation in Article 5 (2) to ''take such measures as may be necessary to
establish its jurisdiction'', it is clear that states parties must eliminate such outdated
restrictions with respect to torture.(22) A second provision of Article 7 (2) safeguards the
rights of suspects in cases of universal jurisdiction by providing that ''the standards of
evidence required for prosecution shall in no way be less stringent than those which apply in
the cases [based on other forms of jurisdiction]''.(23) Similarly, Article 7 (3) guarantees a
person accused of torture ''fair treatment at all stages of the proceedings''.
The obligation in Article 7 (1) to extradite or to submit the case for the purpose of
prosecution is absolute and one that must be fulfilled in good faith.(24) Therefore,
restrictions in national legislation on the scope of that obligation with respect to torture and
ancillary crimes are contrary to the Convention against Torture.
B. Permissive universal jurisdiction
Individual acts of torture are crimes under international law.(25) Evidence in the form of
international and national jurisprudence and scholarly writings indicates that, independently
of the Convention against Torture and the Inter-American Convention on Torture, customary
international law permits states to exercise universal jurisdiction over the crime of torture.
The prohibition of torture, whether it is committed on a widespread and systematic basis
and, therefore, a crime against humanity, or committed against a single victim, is part of jus
cogens.(26) The prohibition of torture is also an obligation erga omnes owed to the entire
international community which all states have a right to enforce through the exercise of
universal jurisdiction over suspects found in their territory.(27)
21

A Trial Chamber of the International Criminal Tribunal for the former Yugoslavia recently
stated:
''. . . at the individual level, that is, that of criminal liability, it would seem that one of the
consequences of the jus cogens character bestowed by the international community upon
the prohibition of torture is that every State is entitled to investigate, prosecute and punish or
extradite individuals accused of torture, who are present in a territory under its jurisdiction.
Indeed, it would be inconsistent on the one hand to prohibit torture to such an extent as to
restrict the normally unfettered treaty-making power of sovereign States, and on the other
hand bar States from prosecuting and punishing those torturers who have engaged in this
odious practice abroad. This legal basis for States' universal jurisdiction over torture bears
out and strengthens the legal foundation for such jurisdiction found by other courts in the
inherently universal character of the crime.''(28)
Nigel Rodley, concluded more than a decade ago that ''permissive universality of jurisdiction
[over torture] is probably already achieved under general international law''.(29) He repeated
this conclusion in 1999, stating that ''it is now hard to imagine a convincing objection to any
state's unilateral choice to exercise jurisdiction [over torture] on a universal basis''.(30) More
recently, he urged: ''In countries where legislative provisions do not exist which give
authorities jurisdiction to prosecute and punish torture, wherever the crime has been
committed and whatever the nationality of the perpetrator is (universal jurisdiction), the
enactment of such legislation should be made a priority.''(31) Other authorities have also
recognized this principle, which is independent of the Convention against Torture.(32) A
doctor from the Sudan, which is not a party to the Convention against Torture, was charged
with torture in a Scottish court and a Mauritanian military officer was arrested in France on
charges of torture, although Mauritania is not a party to the Convention against Torture (see
discussion below in Chapter Ten, Section II).
C. Obligation to prosecute or extradite
There is also some authority, as reflected in the interpretation of international treaty
monitoring bodies and international experts for the view that all states - whether parties to
the Convention against Torture or not - may not harbour persons suspected of torture, but
must either exercise universal jurisdiction over suspects found in their territory or extradite
them to a state able and willing to do so.
The Committee against Torture, an expert body established under that treaty to monitor its
implementation, has declared that all states are under an independent duty to investigate
and prosecute the crime of torture even if they are not parties to the Convention against
Torture, as there exists ''a general rule of international law which should oblige all States to
take effective measures to prevent torture and to punish acts of torture'', recalling the
principles of the Nuremberg judgment and the Universal Declaration of Human Rights.(33)
The Committee against Torture did not limit the obligation to investigate and prosecute to
cases where states had territorial jurisdiction. Similarly, as noted above, the UN Special
Rapporteur on torture has urged that in all states lacking universal jurisdiction legislation,
22

''the enactment of such legislation should be made a priority'', in effect suggesting a moral, if
not legal, obligation.(34)
Other intergovernmental organization bodies have reached similar conclusions. The UN
Commission on Human Rights has stressed ''in particular that all allegations of torture or
other cruel, inhuman or degrading treatment or punishment be promptly and impartially
examined by the competent authority, that those who encourage, order, tolerate or
perpetrate acts of torture must be held responsible and severely punished,'' without limiting
that duty of all states to cases of torture or ill-treatment committed in its own territory.(35)
Principle 5 of the Van Boven-Bassiouni Principles provides that ''States shall incorporate
within their domestic law appropriate provisions providing for universal jurisdiction over
crimes under international law''.(36) Further support for an aut dedere aut judicare obligation
concerning torture independent of conventional law is found in the resolution adopted by the
Inter-American Commission on Human Rights on 20 October 2000 recommending to the
Member States of the OAS that they ''refrain from granting asylum to any person alleged to
be the material or intellectual author of international crimes'', including torture.(37)
***
(1) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, G.A. Res 39/46, 39 U.N. G.A.O.R. Supp. (No. 51) at 197, U.N. Doc. A/39/51
(1984), entered into force 26 June 1986.
(2) Inter-American Convention to Prevent and Punish Torture, O.A.S. Gen. Ass. Res. XXX,
15th Sess., 9 December 1985, entered into force 28 February 1987.
(3) As of 1 September 2001, the following 126 states were parties to the Convention against
Torture: Afghanistan, Albania, Algeria, Antigua and Barbuda, Argentina, Armenia, Australia,
Austria, Azerbaijan, Bangladesh, Belarus, Belgium, Belize, Benin, Bolivia, Bosnia and
Herzegovina, Botswana, Brazil, Bulgaria, Burkina Faso, Burundi, Cambodia, Cameroon,
Canada, Cape Verde, Chad, Chile, China, Colombia, Costa Rica, Croatia, Cuba, Cyprus,
Czech Republic, Côte d’Ivoire, Democratic Republic of the Congo, Denmark, Ecuador,
Egypt, El Salvador, Estonia, Ethiopia, the Federal Republic of Yugoslavia, Finland, France,
Gabon, Georgia, Germany, Ghana, Greece, Guatemala, Guinea, Guyana, Honduras,
Hungary, Iceland, Indonesia, Israel, Italy, Japan, Jordan, Kazakhstan, Kenya, Kuwait,
Kyrgyzstan, Latvia, Lebanon, Libyan Arab Jamahiriya, Liechtenstein, Lithuania,
Luxembourg, Macedonia (The former Yugoslav Republic of), Malawi, Mali, Malta, Mauritius,
Mexico, Monaco, Morocco, Mozambique, Namibia, Nepal, Netherlands, New Zealand, Niger,
Nigeria, Norway, Panama, Paraguay, Peru, Philippines, Poland, Portugal, Qatar, Republic of
Korea, Republic of Moldova, Romania, Russian Federation, Saint Vincent and the
Grenadines, Saudi Arabia, Senegal, Seychelles, Sierra Leone, Slovakia, Slovenia, Somalia,
South Africa, Spain, Sri Lanka, Sweden, Switzerland, Tajikistan, Togo, Tunisia, Turkey,
Turkmenistan, Uganda, Ukraine, United Kingdom, United States of America, Uruguay,
Uzbekistan, Venezuela, Yemen and Zambia.
23

The following nine states had signed, but not yet ratified the Convention, as of the above
date: Comoros, Dominican Republic, Gambia, Guinea-Bissau, India, Ireland, Nicaragua, Sao
Tome and Principe and Sudan.
(4) As of 1March 2001, the following states had ratified the Inter-American Convention on
Torture: Argentina, Brazil, Colombia, Costa Rica, Chile, Dominican Republic, Ecuador, El
Salvador, Guatemala, Mexico, Panama, Peru, Paraguay, Suriname, Uruguay and
Venezuela. As of this date, the following states had signed, but not yet ratified the
Convention: Bolivia, Haiti, Honduras and Nicaragua.
(5) Article 2 of the Inter-American Convention on Torture defines torture as follows:
“For the purposes of this Convention, torture shall be understood to be any act intentionally
performed whereby physical or mental pain or suffering is inflicted on a person for purposes
of criminal investigation, as a means of intimidation, as personal punishment, as a
preventive measure, as a penalty, or for any other purpose. Torture shall also be understood
to be the use of methods upon a person intended to obliterate the personality of the victim or
to diminish his physical or mental capacities, even if they do not cause physical pain or
mental
anguish.
The concept of torture shall not include physical or mental pain or suffering that is inherent in
or solely the consequence of lawful measures, provided that they do not include the
performance of the acts or use of the methods referred to in this article.”
(6) Article 4 of the Convention against Torture provides:
“1. Each State Party shall ensure that all acts of torture are offences under its criminal law.
The same shall apply to an attempt to commit torture and to an act by any person which
constitutes complicity or participation in torture.
2. Each State Party shall make these offences punishable by appropriate penalties which
take into account their grave nature.”
The first two paragraphs of Article 6 of the Inter-American Convention on Torture impose a
similar obligation:
“In accordance with the terms of Article 1, the States Parties shall take effective measures to
prevent and punish torture within their jurisdictions.
The States Parties shall ensure that all acts of torture and attempts to commit torture are
offenses under their criminal law and shall make such acts punishable by severe penalties
that take into account their serious nature.”
(7) Article 5 of the Convention against Torture reads:
“1. Each State Party shall take such measures as may be necessary to establish its
jurisdiction over the offences referred to in article 4 in the following cases
(a) When the offences are committed in any territory under its jurisdiction or on board a ship
or aircraft registered in that State;
(b) When the alleged offender is a national of that State;
24

(c) When the victim is a national of that State if that State considers it appropriate.
2. Each State Party shall likewise take such measures as may be necessary to establish its
jurisdiction over such offences in cases where the alleged offender is present in any territory
under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States
mentioned in paragraph I of this article.
3. This Convention does not exclude any criminal jurisdiction exercised in accordance with
internal law.”
(8)Article 12, para. 1 of the Inter-American Convention on Torture contains a similar
jurisdictional provision:
“Every State Party shall take the necessary measures to establish its jurisdiction over the
crime described in this Convention in the following cases:
a. When torture has been committed within its jurisdiction;
b. When the alleged criminal is a national of that State; or
c. When the victim is a national of that State and it so deems appropriate.” Article 12, para. 2
of the Inter-American Convention on Torture also provides for universal jurisdiction:
“Every State Party shall also take the necessary measures to establish its jurisdiction over
the crime described in this Convention when the alleged criminal is within the area under its
jurisdiction and it is not appropriate to extradite him in accordance with Article 11.”
(9) J. Herman Burgers and Hans Danelius, The United Nations Convention against Torture:
A Handbook on the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment 131 (Dordrecht/Boston/London: Martinus Nijhoff Publishers 1988).
(10) This point has been recognized in commentary on other treaties using the 1970 Hague
Convention model. One commentator has argued that the similar provision in the Hostage-
Taking Convention (and, by necessary implication, similarly worded provisions in other
treaties) not only imposes an obligation to take legislative measures, but also to take judicial
measures to deal with actual offenders. Sami Shubber, The International Convention against
the Taking of Hostages, 52 Brit. Y. B. Int’l L. 205, 220 (1981) (criticizing the narrow reading
given to this obligation in Michael Wood, The Convention on the Prevention and Punishment
of Crimes against Internationally Protected Persons, Including Diplomatic Agents, 23 Int’l &
Comp. L. Q. 791 (1974)).
(11) For example, Article IV of the International Convention on the Suppression and
Punishment of the Crime of Apartheid, adopted by U.N. G.A. Res. 3068 (XXVIII) of 30
November 1973, 28 U.N. G.A.O.R. Supp. (No. 30) at 75, U.N. Doc. A/9030 (1973), expressly
lists what types of measures states parties are obliged to take to establish jurisdiction over
persons suspected of the crime of apartheid:
“(a) To adopt any legislative or other measures necessary to suppress as well as to
prevent any encouragement of the crimes of apartheid and similar segregationist
policies or their manifestations and to punish persons guilty of that crime.
25

(b) To adopt legislative, judicial and administrative measures to prosecute, bring to trial
and punish in accordance with their jurisdiction persons responsible for, or accused of,
the acts defined in article II of the present Convention, whether or not such persons
reside in the territory of the State in which the acts are committed or are nationals of
that State or some other State or are stateless persons.”
In contrast, Article 16 of the 1999 Second Hague Protocol for the Protection of Cultural
Property in the Event of Armed Conflict, reprinted in Adam Roberts & Richard Guelff,
Documents on the Laws of War 700 (Oxford: Oxford University Press 2000), simply requires
states parties to take legislative measures to establish universal jurisdiction over violations of
the Convention in international and non-international armed conflict:
“(1) “Without prejudice to paragraph 2, each Party shall take the necessary legislative
measures to establish its jurisdiction over offences set forth in Article 15 [identifying
what conduct must be made crimes under national law] in the following cases:
. . .
(c) in the case of offences set forth in Article 15 sub-paragraphs (a) to (c), when the
alleged offender is present in its territory.”
(12) Human Rights Watch, United Nations asks Senegal to Hold Ex-Chad Dictator: Victory
for Hissène Habré’s victims, 23 April 2001 (obtainable from
http://www.hrw.org/press/2001/04/habre-cat0423.html). See also letter by Hamid
Gaham, Chief Support Services Branch, to Mr. Reed Brody, dated 27 April 2001 (obtainable
from
http://www.hrw.org/french/themes/images/guengueng_small.jpg).
(13) Similarly, Article 12, para. 3 of the Inter-American Convention on Torture provides that
“[t]his Convention does not exclude criminal jurisdiction exercised in accordance with
domestic
law.”
(14) The second paragraph of Article 8 of the Inter-American Convention on Torture has a
somewhat similar obligation:
“Likewise, if there is an accusation or well-grounded reason to believe that an act of
torture has been committed within their jurisdiction, the States Parties shall guarantee
that their respective authorities will proceed properly and immediately to conduct an
investigation into the case and to initiate, whenever appropriate, the corresponding
criminal process.”
(15) Article 14 of the Inter-American Convention on Torture provides that when a state party
does not extradite a person suspected of torture, it must submit the case to its authorities for
the purpose of investigation and, if warranted, prosecution:
“When a State Party does not grant the extradition, the case shall be submitted to its
competent authorities as if the crime had been committed within its jurisdiction, for the
purposes of investigation, and when appropriate, for criminal action, in accordance with
26

its national law. Any decision adopted by these authorities shall be communicated to
the State that has requested the extradition.”
(16) Burger & Danelius, supra, n. 9, 137 (“It has been argued that a State basing its
jurisdiction exclusively on article 5, paragraph 2, should not be obliged to prosecute, unless it
has first refused extradition to one of the States referred to in article 5, paragraph 1. During
the travaux préparatoires regarding the Convention, proposals were made to include specific
provisions to this effect in the Convention. However, these proposals were not accepted and
most States did not consider this to be a satisfactory solution.”) (emphasis in original). See
also Ahcene Boulesbaa, The U.N. Convention on Torture and the Prospects for Enforcement
222-223 (The Hague/Boston/London: Martinus Nijhof Publishers 1999).
(17) Ibid., 131, 136.
(18) A recent study of the Convention against Torture has recognized that the Convention
did not provide for any order in which the different principles of jurisdiction reflected in
Articles 5 and 7 should be applied. Boulesbaa, supra, n.16, 233. The travaux préparatoires
indicate that there was no consensus among the drafters on a priority of jurisdictions. Ibid.,
189-232. However, the author’s proposals for resolving conflicting jurisdictions on the basis
of balancing the interests of each state - a method used in commercial civil litigation - are
wholly inappropriate when a crime under international law of equal concern to all members
of the international community is at stake. It could lead in many cases to the territorial state -
the one whose officials are implicated in the crime - having a prior claim, even it the trial
were to be a sham or unfair. As defined by the author, “[t]he interests of the State where the
torture was committed in exercising its jurisdiction and punishing the offender are far greater
than the interests of the State where the offender was found.” The jurisdiction of the latter
may be exercised only if the former refuse to do so.” Ibid., 202. As indicated in the
Introduction, in an ideal world, as a general rule it would be better for the trial to take place in
the territorial state, but the very reason states exercise or seek to exercise universal
jurisdiction is because the territorial state has failed to fulfill its obligations under international
law to investigate and, if there is sufficient admissible evidence, to prosecute the suspect.
(19) Burger & Danelius, supra, n. 9, 132.
(20) According to Burger and Danelius, “This means that the normal procedures relating to
serious offences . . . shall be applied.” Ibid., 138.
(21) It is a fundamental principle of international law that a state party “may not invoke the
provisions of its internal law as justification for its failure to perform a treaty.” Vienna
Convention on the Law of Treaties, U.N. Doc. A/CONF. 39/27 (1969), reprinted in 63 Am. J.
Int’l L. 875 (1969), Art. 27 (Internal law and observance of treaties).
(22) For example, the following types of restrictions in national legislation on the ability to
prosecute persons suspected of these crimes are inconsistent with the obligations of states
parties to the Convention: double criminality, geographic limits, temporal limits, statutes of
limitations, recognition of the binding effect of a foreign judgment even in the case of a sham
trial, recognition of foreign national amnesties and recognition of official immunities.
27

(23) According to Burger and Danelius,
“This means that the normal procedures relating to serious offences as well as the
normal standards of evidence shall be applied. It is specifically indicated in the second
sentence of paragraph 2 that the standards of evidence shall in no be less stringent
than those applicable in the cases referred to in article 5, paragraph 1. The lack of
evidence may frequently be a serious obstacle to bringing proceedings in a country
other than that in which the torture took place. It may be difficult to call witnesses and
collect other evidence, in particular where the State in which the offences were
committed is not willing to co-operate in investigating the case. The second sentence
makes it clear, however, that although the principle of universal jurisdiction has been
regarded as an essential element in making the Convention an effective instrument,
there has been no intention to have the alleged offenders prosecuted or convicted on
the basis of insufficient or inadequate evidence.”
Ibid., 138.
(24) The suggestion by one commentator, Boulesbaa, supra, n. 16, 220, that if a state party
submitted the case of a suspected torturer to its competent authorities for the purpose of
prosecution and they declined to prosecute for a legitimate reason, such as lack of evidence
in the forum state, that state would have fully satisfied its obligations under the Convention,
seems to be unwarranted and inconsistent with the object and purpose of the treaty to end
any safe haven for torturers. Surely, the state party would still have the duty, first, to seek
cooperation from other states in obtaining evidence and, if it were unable to prosecute, to
comply with a renewed or subsequent request for extradition, subject to appropriate
safeguards in the requesting state. Once it was established in the forum state that a
prosecution was impossible, the state party could not, when faced with a renewed or
subsequent extradition request plead that it met its duty under Article 7 (1) when it knew that
it was impossible to prosecute in the forum state. Otherwise, torturers could easily find
refuge in states where those states did not have sufficient evidence, and were among the
majority of states without adequate mutual legal assistance or extradition treaties. Such a
restrictive interpretation could seriously undermine the effectiveness of the Convention in
ending impunity.
(25) R. V. Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet
Ugarte (Amnesty International and others intervening) (Pinochet No. 3) , [1999] 2 All ER 97,
Hutton (“acts of torture were clearly crimes against international law” as of 1988) 164;
Browne-Wilkinson, 114 (“international crime of torture”); Millet (“The 1984 Torture
Convention did not create a new international crime. But it redefined it.”).
(26) That the prohibition of torture is part of jus cogens is recognized both by scholarly
authority and national courts: See, for example, Restatement (Third) of the Foreign Relations
Law of the United States § 702, comment n (prohibition of torture is jus cogens) (1986);
Pinochet (No. 3), Browne-Wilkinson, 108 (noting that Chile had accepted that “the
international law prohibiting torture has the character of jus cogens or a peremptory norm”);
28

Hutton, XXX (“the prohibition of torture had [ac]quired the status of jus cogens by that date
[1988]”); Hope, XXX (“there was already widespread agreement that the prohibition against
official torture had achieved the status of a jus cogens norm”by 1988); In re Estate of
Ferdinand Marcos, Human Rights Litigation (Hilao v. Estate of Marcos), 25 F.3d 1467, 1473,
1475 (2d Cir. 1994); Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 717 (9th Cir.
1992), cert. denied, 507 U.S. 1017 (“[T]he right to be free from official torture is fundamental
and universal, a right deserving of the highest stature under international law, a norm of jus
cogens.”).
(27) Restatement (Third) of the Foreign Relations Law of the United States § 702, comment
o (violations of the prohibition of torture “are violations of obligations to all other states”).
Lord Browne Wilkinson expressed the view in his opinion in the Pinochet case that “[t]he jus
cogens nature of the international crime of torture justifies states in taking universal
jurisdiction over torture wherever committed.” Pinochet (No. 3), Browne-Wilkinson, 109.
(28) Prosecutor v. Furund ija, Judgement, Case No. IT-95-17/1-T (Trial Chamber, 10
December 1998), para. 156.
(29) Nigel Rodley, The Treatment of Prisoners under International Law 107 (Oxford:
Clarendon Press 1987).
(30) Nigel Rodley, The Treatment of Prisoners under International Law 130; 133 (Oxford:
Clarendon Press 2nd ed. 1999).
(31) Report of the Special Rapporteur, Sir Nigel Rodley, submitted pursuant to Commission
on Human Rights resolution 2000/43, U.N. Doc. E/CN.4/2001/66, 25 January 2001, para.
1316 (a).
(32) Daniel Bodansky, Human Rights and Universal Jurisdiction, in Mark Gibney, ed., World
Justice: U.S. Courts and International Human Rights (Boulder/San Francisco/Oxford:
Westview Press 1991) (“[U]niversal jurisdiction over torture is permitted as a matter of
customary international law.”);Geoff Gilbert, Crimes Sans Frontières: Jurisdictional Problems
in English Law, 63 Brit. Y.B. Int’l L. 415,423-424 n. 61 (1992); Robert Jennings & Arthur
Watts, 1 Oppenheim’s International Law 470 (London: Longman 9th ed. 1996); Menno T.
Kamminga, Final Report on the Exercise of Universal Jurisdiction in Respect of Gross
Human Rights Offences, Committee on International Rights Law and Practice, International
Law Association, London Conference 2000 (Final ILA Report) 8 (“States not parties to the
Convention against Torture are entitled, but not obliged, to exercise universal jurisdiction in
respect of torture on the basis of customary law. . . . Perpetrators of torture committed in
states that are not parties to the Convention against Torture may therefore be brought to trial
elsewhere on the basis of universal jurisdiction.”); Kenneth C. Randall, Universal Jurisdiction
under International Law, 66 Tex. L. Rev. 785, 791 (1988); Steven R. Ratner & Jason S.
Abrams, Accountability for Human Rights Atrocities in International Law 111(Oxford:
Clarendon Press 1997); Restatement (Third) of the Foreign Relations Law of the United
States (1987), § 404; see also André Huet & Renée Koering-Joulin, Droit pénal international
29

191 (Paris: Presses Universitaires de France 1994) (noting the emerging system of
repression of torture).
(33) UN Committee against Torture, decision of 23 November 1989, Communication Nos.
1/1988, 2/1988 and 3/1988, Argentina, decisions of November 1989, para. 7.2.
(34) See footnote 31, above.
(35) UN Commission on Human Rights, Res. 2000/43, para. 6.
(36) UN Commission on Human Rights Independent Expert on the right to restitution,
compensation and rehabilitation for victims of grave violations of human rights and
fundamental freedoms, Draft Basic Principles and Guidelines on the Right to a Remedy and
Reparation for Victims of International Human Rights and Humanitarian Law (Final Draft), 18
January 2000 (Van Boven-Bassiouni Principles), U.N. Doc.
E/CN.4/2000/62/Rev.1 (2000), Principle 5.
(37) Inter-American Commission on Human Rights, Asylum and International Crimes, 20
October 2000, obtainable from http://www.cidh.oas.org/asylum.htm (for the full text of this
statement, see Chapter Four, Section I).
SOURCE: http://web.amnesty.org/library/index/engior530122001?OpenDocument
30

II. DOCUMENTING ALLEGATIONS OF TORTURE
1. Introduction
The object of this part is to provide guidelines on how to go about documenting an allegation
of torture. This part deals specifically with documenting and reporting torture, but allegations
of disappearances, extra-judicial killings and other human rights violations can also be
documented using broadly similar information, collected using these guidelines.
The individual allegation forms the backbone of any submission. Even if your final goal is to
compile a report which discusses the general situation in a country, you will need to start by
collecting individual allegations as this is the best way to establish and build up patterns and
general trends. Individual allegations are not necessarily made by the victim him or herself -
in cases where the victim has disappeared, been killed, or is being detained incommunicado,
an individual allegation may be made by witnesses or relatives who last saw the person, and
may have noted injuries or altered behaviour that indicate ill-treatment had occurred.
2. Basic principles of documentation
The primary goal of documenting allegations of human rights violations is to create an
accurate, reliable and precise record of events. The uses to which this record may be put are
varied, but all rely equally on the quality of the record which has been established. This
means that when you are documenting allegations, you should:
• Seek to obtain good quality information
• Take steps to maximize the accuracy and reliability of the information
2.1 Why do these principles matter?
Unless you are making an allegation based on your own experience, it can be difficult to
always be certain of the quality, accuracy and reliability of the information you collect.
Human rights violations often occur in contexts where emotions and allegiances are very
strong, and can influence the reports and allegations received. It is important to do your best
to remain objective when assessing the nature of the information - no matter what opinion
you may hold about the general situation or however strongly you might feel about the
content of the allegation, you need to consider if, objectively, the information is sufficiently
accurate, reliable and of good quality to initiate action before a domestic authority or an
international body. As you will see below, the degree of quality, accuracy and reliability
necessary may vary according to the course of action selected, but you should always aim to
reach the highest standard possible in the circumstances. How rigorous you choose to be is
a decision for you or your organisation, but remember that the information you submit is a
reflection of your own reliability - this will affect your reputation with the international bodies,
and the seriousness with which your allegations are considered.
2.2 What does good quality information consist of?
The quality of information necessary in relation to a particular allegation depends on the
purpose for which it is to be used. For example, judicial procedures, whether domestic or
31

international, usually require a high standard of proof. By contrast, reporting procedures may
be able to act with little or no supporting documentation or fewer details. You should aim to
obtain the best information possible under the circumstances - this does not mean that you
must always reach the highest standard before submitting information, but it does mean that
you should do your best to put together a strong allegation using all the information available
to you.
Factors which contribute to the quality of your information are:
• The source of the information: Where was the information obtained? Directly from
the victim, from the victim's family or friends, from a witness present at the scene of
the incident, from someone who heard it from someone else, from a media report?
The further away from the victim or incident you get, the less dependable the
information is likely to be.
• The level of detail: Is the allegation very detailed? Are there unexplained gaps in the
account? Do you only know the very bare facts? The more detail you can obtain, the
better, because it helps others to understand what happened.
• The absence or presence of contradictions: Is the account consistent throughout?
Are there contradictions in the account or elements which do not make sense? Good
information should be consistent, or at least try to provide a reason for any
inconsistencies - for example, if a victim or witness has made two statements which
contradict each other, it may be that this is a result of intimidation. Minor
inconsistencies are common and may not affect the overall quality of the information,
but major inconsistencies should prompt you to seek further verification of the
information.
• The absence or presence of elements which support (corroborate) or disprove the
allegation: Are there witness statements which confirm the victim's account? Is there
a medical certificate or autopsy report which confirms the victim's injuries? The more
supporting documentation you can provide, the more likely it is that the allegation will
be found credible.
• The extent to which the information demonstrates a pattern: Is the allegation one of
many alleging similar facts? Is it the only one of its kind which has ever been
received in a particular area? Where there is evidence of a commonplace practice,
there may be a higher presumption that the information is true.
• The age of the information: Is the information very recent? Does it relate to facts
which occurred several years previously? The fresher your information, the easier it
is to investigate or verify the facts alleged.
FIRST HAND + DETAILED + INTERNALLY CONSISTENT + CORROBORATED
FROM SEVERAL ANGLES + DEMONSTRATING A PATTERN +
FRESH= HIGHEST STANDARD
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Remember that this is an indication of what the very highest standard would be. It is often
not possible to obtain information of this quality - this does not mean that you cannot use it.
Instead, the quality of your information will be a factor when the time comes to select the
procedure(s) to which you wish to send it. The emphasis in this chapter is placed on
documenting the allegation in such a way that you should in principle be able to submit it to
virtually any available procedure.
2.3 What can you do to maximize the accuracy and reliability of information?
Verifying the accuracy and reliability of information can be a difficult and sensitive task and it
is true that to a large extent you are dependent on the good faith of those who supply you
with information in the same way that the international bodies are on yours. It is, however,
possible to maximize the likelihood that information is accurate and reliable by taking certain
general precautions, by seeking corroboration of specific cases, both at the time of an
interview and subsequently, and by exercising good judgment.
General precautions which you can take to maximize reliability include:
• knowing your sources and being familiar with the context in which allegations are
being made
• maintaining contact with sources - you may need to obtain or verify details at a later
stage
• asking for victims' names and contact details even if you keep them confidential
• being more cautious and thorough with vague or general information
• avoiding the basing of allegations purely on media reports or rumours without first
seeking corroboration
When carrying out interviews, you can maximize both accuracy and reliability by:
• using precise questions
• approaching the account in a chronological fashion so that it is easier for you to pick
out and address inconsistencies
• reviewing apparent inconsistencies from several angles, rewording your questions if
necessary - the interviewee may be confused or may not understand your question
• asking if there were any witnesses to the alleged incident or if there is any supporting
documentation, such as a medical report or a copy of a petition lodged as a result of
the incident - explain that supporting documentation can help to make an allegation
stronger and increases the opportunities available to seek a remedy
• observing and noting the interviewee's demeanour and body language, asking
yourself - does this person seem credible? In this context, you should be aware of
the influence of culture, gender and psychological state.
Whenever possible, where an interviewee has indicated the existence of potential
corroborative evidence, you should try to obtain it.
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Ultimately, you should exercise judgment - where you have doubts about the accuracy or
reliability of an allegation, it is worth spending a little more time seeking corroboration than
when you are convinced of its sincerity. If you have reservations about the allegation, it is
likely that others will have them too, because they can only see it through the perspective
you present in your submission. If you cannot resolve your doubts, you may be wasting more
time and resources preparing the allegation than you would in either dispelling or confirming
them.
Remember that where you have genuine cause to believe that a person is in danger
and urgent action is needed, you may need to act quickly even where some doubts
still remain as to reliability - it is clear that in such circumstances the security of the
person should take priority.
3. Interviewing the person alleging torture
3.1 Introduction
In many ways, recording the allegation of torture is the most crucial step in the entire
reporting process, because it dictates what you are able to do with the information in the
later stages, yet it is also the one which can be most difficult either to learn or to explain in a
universally applicable manner. Training of personnel in interview techniques should form part
of the preparation any NGO makes before attempting to document allegations and is beyond
the scope of this section. The following guidelines and suggestions are designed to be used
as an aide memoire and not intended to replace proper training of personnel.
Remember that an allegation of torture may be made by:
• the victim
• the relatives of a victim
• witnesses, such as a doctor who examined the individual, or individuals who saw the
victim being taken into custody or were present during the incident of torture.
In all cases the information can be collected by interviewing the person making the
allegation. The interview may lead you to seek further witnesses, such as co-detainees, or a
doctor who may have examined the person.
3.2 General considerations
When conducting an interview, you should bear in mind the following general considerations:
• You need to balance two important requirements, which should be complementary,
but may sometimes conflict: the need to obtain a useful account, and the importance
of respecting the needs of the person being interviewed.
=> On the one hand, the guiding principle should be that you are attempting to obtain
the most logical, precise and detailed account possible of the incident, so as to
enable you or anybody examining the allegation to understand clearly what
happened, as well as to make it possible to seek verification or investigation of the
information.
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=> On the other hand, it can easily happen that an interviewer, intent on
reconstructing a sequence of events, forgets that the interview itself can be very
difficult for a person who has already undergone a traumatic experience once and is
being asked to focus on it in detail. Interviewers should show sensitivity in their
questioning and watch out for signs of tiredness or distress. They should also be
aware of culturally taboo subjects, particularly sexual abuse. Not only may the
interview become unpleasant for the person being interviewed, but it is also possible
that the account may become less reliable if the person is tired or upset.
• A balance must also be struck between the need to obtain as many details as
possible and the importance of not over-directing or influencing the account. The
facts which you record should be those which occurred, not those which you suggest
might have occurred.
• Each person interviewed, whether the victim or a relative or other witness, is an
individual with a distinct story. Even if you are aware of the patterns of violations that
are prevalent in your area in the greatest detail, or you are fairly certain what
happened to a particular victim, you should not assume that each person will have
the same story. You must treat each interview as a unique record.
• Members of the documentation team might find interviewing victims of torture and
other witnesses to be very stressful. They should be prepared to discuss their
responses and feelings amongst themselves, and if necessary seek professional
help.
3.3 Conducting the interview
3.3.2 How should you begin the interview?
You should begin by introducing yourself, your organisation, your objectives, and the
possible uses to which the information you are gathering may be put. If you requested a
particular individual by name, you should explain to that individual how you obtained his or
her name. Make sure that the interviewee has no objection to note-taking or the use of
recording-machines or interpreters. Address the issue of informed consent and emphasize
the confidentiality of the interview itself, subject to the consent of the individual to its use. It is
also important not to build unrealistic expectations for the interviewee - you should make
sure that they understand that any potential allegation process may take time and can yield
limited results.
3.3.3 Should you keep notes of the interview?
Keeping a detailed record of your interview is important to ensure accuracy, but you should
explain to the individual how these notes will be used and who will have access to the
information contained in them. There may be some instances when it is more appropriate to
just listen (e.g. in a small police station) and make your notes immediately afterward.
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3.3.4 By whom should the interview be conducted?
Interviewing an individual, particularly a victim, about an incident of torture is both
emotionally and physically tiring. It is especially difficult where the interviewer is alone,
because this requires an ability to ask questions, listen, develop a rapport with the
interviewee, handle difficult emotional situations, take notes and watch out for gaps and
inconsistencies all at the same time, an almost impossible task. Where the circumstances
permit, it is best to interview as a pair, with one person asking the questions and the other
taking notes. Even better is where the two individuals have complementary skills, e.g.
medical and legal expertise. This helps to make sure that no important points are missed
and that the right questions are asked. In order to avoid confusion for the interviewee and to
facilitate the establishment of a rapport, however, you should make sure that one of the
interviewers has primary responsibility for questioning, giving the second interviewer an
opportunity to intervene towards the end.
3.3.5 Are there any special considerations to keep in mind when using interpreters?
• Make sure that the interviewee agrees to the use of an interpreter and is aware that
the interpreter has a professional duty to respect the confidentiality of the interview.
• Be aware that the interpreter may find the content of the interview difficult to deal with
• Make sure that the interpreter is aware of the need for absolute confidentiality - this is
particularly important if you are using non-professional interpreters.
• Be aware that non-professional interpreters may be more easily drawn into the
conversation than professional ones - it is important to explain to them that their job
is to relate the interviewee's words exactly. If they have also had a personal
experience which they wish to tell you about, let them know that you can arrange a
separate interview with them.
• Avoid using local persons unless absolutely necessary. It can create mistrust on the
part of the interviewee, and may also place the interpreter at risk. This applies
equally to co-detainees, family members and other relatives, and anyone involved in
the situation in any way. Remember in addition that while family members may be
viewed as supportive in certain cultures, in others it may be highly inappropriate to
discuss certain matters in their presence. For example, it may be culturally taboo for
a female victim to discuss sexual matters in the presence of a male member of her
family. If you or your organisation is of local origin, you should probably already be
aware of any sensitivity - do not forget to take them into account.
• Remember not to switch off during interpretation: even if you are not speaking
directly to the interviewee, it is important to establish a rapport with them and to show
that you are interested in what you are being told.
3.3.6 What can you do to make the interviewee feel more at ease?
Interviews about very personal experiences, such as ill-treatment, can be extremely
intimidating. You may not have much control over the setting in which the interview takes
36

place, but even small considerations on your part can help an interviewee to feel more
comfortable.
• Establish as comfortable and private a setting as possible - preferably alone, unless
the interviewee would feel more at ease with someone else present and that person
agrees not to interfere with the conversation.
• If the interview cannot take place in private, try to ensure at least that others are out
of hearing.
• Be aware that your posture and how you sit in relation to the interviewee can affect
how comfortable they feel - for example, in a confined space, leaning forward may
appear threatening, while under other circumstances, not doing so may convey a
lack of interest. Some may prefer to sit closer to the interviewer, others may be very
protective of their personal space or shy away from being touched. Be aware of your
surroundings and observe the body language of the interviewee to gain a sense of
what may be most appropriate in a given case.
• Allow for the possibility of taking breaks.
3.3.7 How can you deal with people who are too afraid to talk?
Some interviews may be conducted in a relatively safe place, but in many cases the
surroundings will not be secure. This is particularly the case where interviewees are still in
the custody of the authorities. You cannot ensure their safety, but you can take steps not to
place individuals at greater risk than necessary.
• Make sure that individuals have given their informed consent to the interview.
• Never name individuals alleging ill-treatment to the authorities without their express
consent.
• Avoid identifying individuals, even inadvertently, as being those who have given you
information - for example, in a location with a very small number of detainees, like a
police station, you should make sure to interview all detainees in the same way, and
not to react immediately to allegations in a way which makes it possible for the
authorities to identify the source of information. If you feel that an issue should be
immediately taken up with, for example, a police station chief, you should first consult
with the interviewees, and should never approach the official without their consent.
• Make it very clear to interviewees that if they or any of their relatives or friends are
subject to intimidation or pressure of any kind as a result of the information they have
provided, they should let you know - give them a card with your contact details, and
emphasise the importance of contacting you.
• Do your best to follow-up individual cases if you feel they may be at risk in any way -
keep records of all the persons you have interviewed, and ask for them by name if
you are able to carry out subsequent visits.
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3.3.8 Are there any special considerations to keep in mind when conducting
interviews in prisons or other places of group custody?
Awareness of group dynamics and prison structures is important when choosing how to go
about interviewing individuals in such an environment.
• Where there is a ward or prisoner representative, it can be helpful to interview and
seek the co-operation of this person first - similarly, there may be a certain hierarchy
among persons in long-term custody which it may be useful to be aware of.
• If it is feasible, you should try to interview all detainees. In a large facility, this may
not be possible, but you should try at least to interview a significant group of
detainees of a particular category.
• If interviews must be carried out in a ward or dormitory environment, it can be helpful
to begin with a general group interview introducing yourself and what you are looking
for, but you should also interview each individual. Even if there are others in the
same area and privacy is not possible, you should try to talk to each individual one at
a time.
3.3.9 How can you address the sensitivity of the subject-matter?
Interviews about experiences of torture can be very sensitive and painful, but you can take
steps to minimize the risk of re-traumatisation of victims. For example:
• Show regard and respect for the interviewee in your tone, language, and attitude.
• Be aware of cultural factors and exercise particular sensitivity towards culturallytaboo
subjects.
• Advise the interviewee about the possibility of obtaining support or a referral.
• Listen and allow expression of personal and family concerns.
• Acknowledge pain and distress, but maintain professional boundaries - do not create
unreasonable expectations that you can respond to their needs.
• Do not press interviewees if they become distressed - be aware that some victims
might not be ready to talk about their experience.
• Where possible, it may be better to carry out several shorter interviews rather than
one long and intensive one.
• Try not to end an interview suddenly without bringing the conversation around to a
less sensitive subject.
3.3.10 What can you do to maximize the reliability of information?
You can:
• Avoid leading questions - these are questions which already suggest the answer you
are looking for, e.g. asking 'were you tortured in custody?' would be a leading
38

question, but 'did anything happen to you?' would not. It is important that the account
given by the interviewee is his own, not yours.
• Encourage the interviewee to use his or her own words.
• Avoid the use of lists where possible, as they can lead to inaccuracies where the
items on the list do not correspond exactly to the experience of the interviewee.
• Be aware that inconsistencies do not necessarily mean that an allegation is false.
The interviewee may be confused or have found your question difficult to understand.
You can sometimes resolve inconsistencies by asking the same question in a
different way.
• Observe the interviewee carefully - make a note of your impression of his or her
credibility or otherwise.
3.3.11 Are there any special gender considerations to take into account when
selecting an interviewer or interview team?
There is no strict rule on this point, and it will depend on the individual interviewee and
interviewer. Preferences may be based on cultural or personal factors. In general, it is better
to try to have a female interviewer present when interviewing a woman, especially if the
account is likely to involve sexual matters. It is less clear-cut with regard to men - they may
also prefer to speak with a woman about sexual matters, but in certain cultures this would be
unacceptable. Do not forget to take into account the gender of the interpreter.
3.3.12 Are there any special considerations to take into account when interviewing
children?
Your primary goal when interviewing children must be to try not to do harm. It is very
different to interviewing adults, and needs to be treated as such. Interviewers should have
some experience of working with children or the effects of an interview may be more
detrimental than the potential benefits. Ideally, they should have both experience and
expertise, and if they have never done it before, it is advisable to run through a mock
interview with another member of the interview team in order to get a feel for the process.
The following should be borne in mind:
• In addition to, or instead of, being tortured themselves, children may have been
forced to witness the torture of others, particularly parents or close family members.
You should not underestimate the effects which this may have on them.
• It is important to give children a sense of security and support during the interview.
This may be achieved through the presence of a parent, relative or guardian, or a
counsellor if the child has been seeing one.
• It is most important to observe a child's behaviour during the interview: their ability to
express themselves verbally depends on their age and stage of development, and
behaviour may reveal more about what happened to the child than his or her words.
• Children are particularly sensitive to tiredness and should not be pressed.
39

• If the child may have been the victim of a physical or sexual assault, an intimate
examination should not be carried out by a non-expert doctor.
• Try to ensure that the child is provided with a support network after the interview.
4. Information which should be recorded
IMPORTANT NOTE:
The guidelines below indicate the optimum information which you could collect. However,
this is not a rigid checklist, and must be used flexibly, adapting to the particular context. It is
important not to become excessively focused on obtaining a specific number of details,
which may either be inappropriate in a particular case or may result in your failing to pick up
on other important points which you were not expecting. Even more importantly, you must
respect the individual and not see them as simply an information source, or the interview
may itself deteriorate into a form of interrogation.
Be guided by your impression of the clarity of the account. Ask yourself throughout if there is
any aspect which you do not understand, or which seems unclear, vague or contradictory.
Check that it makes sense to you. Watch out for gaps in the chronology, where periods of
time are not accounted for. Returning to these gaps and apparent contradictions may reveal
elements which you did not think to ask about. Ideally, your notes should enable you to
recount the events in sequence, with no big questions left unanswered.
Do not delay in sending your allegation due to the absence of some of the details included
below (they may not be relevant or essential), but do make sure that you can at least
establish the minimum elements for making an allegation of ill-treatment that a victim
underwent, or is at risk of undergoing, ill-treatment at the hands of or with the knowledge
and acceptance of a state authority.
4.1 Model information
YOU SHOULD KNOW
WHO did WHAT to WHOM? WHEN, WHERE, WHY and HOW?
4.1.1 What kind of details do you need in order to answer these basic questions?
The information should:
1. Identify the victim(s)
2. Identify the perpetrator(s)
3. Describe how the victim came into the hands of the public officials
4. Explain where the victim was taken / held
5. Describe what the holding conditions were like
6. Describe the form of the ill-treatment
7. Describe any official response to the incident (including stating that there was none)
40

Identify the victim(s)
The more detail can be obtained about the individual, the more definite the identification can
be:
• Full name (and father's name - relevant to some cultures).
• Gender (this may not be clear from the name alone)
• Date of birth/age
• Occupation
• Address
• Appearance, including any unusual characteristics
• A photograph - of the victim alive or indeed dead (these might help experts to
interpret any obvious signs of ill-treatment seen in the photographs)
• Some indication of the victim's state of health before being arrested or detained -
medical records, witness accounts etc.
Remember that urgent actions cannot normally be taken without a name.
Identify the perpetrator(s)
Remember that it must be established that the victim was in the custody of, or held with the
acquiescence of, the authorities, or that the authorities failed to protect the victim, for a
violation to be established. You do not necessarily have to identify the individual perpetrators
(though you should if you can), as long as you can establish that they had a connection with
the state.
• Who apprehended the victim? - ideally the number of people and their name, rank
and unit. If not known then the following details can help in identification:
• Which security force, military, or paramilitary unit did they belong to?
• How were they dressed? - uniform or plain clothes?
• What did they look like? - did they have any unusual characteristics?
• What weapons did they carry? - some weapons may be fairly specific to a force.
• What vehicles were used? - marked or unmarked; was the number plate or
registration noted?
Describe how the victim came into the hands of the public officials
The method of abduction or taking into custody, and subsequent treatment, may itself be
characteristic of a particular group operating in your area (which might have been
established by previous submissions to the international bodies), and helps to establish that
the victim was held by the perpetrators.
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• Where was the person taken into custody? - home, street, place of worship, outside
a military base etc.
• When was the person taken into custody? - the approximate date, or the month or
season of the year. The time of day or whether it was morning, afternoon or night.
• How did it occur? Was any form of restraint used? Were any others present who
would have seen it happen? - if no detail is known, when and where was the last time
the victim was seen and in whose company? Was there any warning, was the victim
summoned to a police station; were they in a demonstration on the street etc.
• Was any reason given for the arrest? Even if no official reason was given, a reason
may be suggested by the kind of questions asked or the circumstances of the arrest.
Explain where the victim was taken / held
The victims may have been held in a particular place, or may have simply been taken to an
area of the town and then left, with ill-treatment occurring during transport.
• What was the name and location of the police/gendarme station, military camp,
institution or area?
• How long were they held for?
• Were they transferred anywhere? If so, where to, by whom and on what
approximate dates? How did they get there? Was any reason given for the transfer?
If it was temporary, how long did it last?
Describe what the holding conditions were like
The conditions of detention may form a part of the ill-treatment, but this can be decided by
the body to which you submit your allegations. For secret places of detention, the combined
testimonies of different individuals may establish that the place actually exists, and may help
to identify it. It may even enable you to construct a map of the layout of the establishment.
You should therefore record as much detail as possible.
Ask the victim to describe in as much detail as possible the place in which they were held,
particularly the cell or place where they slept and any other rooms where they were taken,
including for any interrogation. Victims may have been blindfolded - if this is the case, you
should ask them for descriptions using senses other than sight - what did they hear, smell or
touch? Below is the sort of information you need to document about conditions:
• Location of the room within the institution: did they have do go upstairs or down;
what could they hear and smell around them; did they notice any landmarks on their
way there; if there is one, can anything be seen out of the window of the room?
• The room itself: What size was it? What were the walls, floor, ceiling, door made of
? What shape was it? Was there anything unusual about it?
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• Others held in the room: Were any other people held there; if so, how many; are
any of them possible witnesses; would they have noticed anything about the state of
health of the victim; what state of health were the other people in?
• Isolation: If the victim was in isolation, for how long and in what manner were they
isolated?
• Content of the room: What was in the room - bedding, furniture, toilet, sink etc.?
• Climate of the room: What was the temperature like; was there any ventilation; was
there any dampness?
• Light: Was there any light; was it natural light from a window, or electric light; if it
was electric light, how much of the time was it on; What did the light look or feel like,
e.g. colour, intensity?
• Hygiene: Were there any facilities for personal hygiene; where and how did they go
to the toilet or bathe? What was the general hygiene of the place like? Was it infested
in any way?
• Clothes: What clothes did they wear and could they be washed or changed?
• Food and drinking water: how often and how much food and water was given; what
was the quality like; who provided it; was it provided free of charge?
• Exercise: Was there any opportunity to leave the cell? If so, for how long and how
often?
• Regime: Were there any especially stringent or monotonous aspects to the regime?
• Medical facilities: Was a doctor or any other form of healthcare professional present
or available; could any of the prisoners be examined or treated in a separate medical
facility such as by a family doctor or hospital; were medicines available; who were
they provided by?
• Family visits: Was there access to family visits; if so, where did these take place;
could conversations be overheard; did the family know where the person was?
• Legal representation: Was there access to a legal representative; when was access
first given, i.e. how long after the victim was first taken into custody; how often was it
given; where did visits take place; could the conversation be overheard?
• Appearance before a judicial officer: Did the victim appear before a magistrate or
court; when did this happen, i.e. how long after the victim was first taken into
custody?
• Bribes: Did any bribe have to be paid for any of these facilities?
Describe the form of the ill-treatment
Remember that ill-treatment might be both physical and psychological, and that either or
both may amount to torture. The forms of ill-treatment are limited only by the imagination of
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the perpetrator, and it is neither possible nor desirable to provide a list. The date and place
in which the ill-treatment occurred may help to identify the perpetrator, for example by
making it possible to check who was on duty at that time.
The victim or witness should be asked about the exact nature of the treatment inflicted:
Where did it occur - what happened - how often - what effects did it have on the victim
immediately and later?
You could ask:
• What they can recall about the identity of the perpetrator(s).
• If there were any distinctive things about the room in which ill-treatment occurred.
• If there were any other detainees present at the time, if they saw what happened to
the victim and if anything happened to them.
• If the victim was asked any questions during the ill-treatment or if anything else was
said to him or her - this may give an indication of the purpose, if any, of the illtreatment.
• For a description of exactly what occurred and how frequently - where the illtreatment
was physical, you should ask for a description of any instruments used and
the parts of the body to which the treatment was applied. Where the ill-treatment was
psychological, ask the victim if he or she can describe exactly how he or she felt,
both at the time and afterwards.
• What the immediate effects were on the individual of each particular form of illtreatment.
• If they received any medical treatment, immediately or any time later, including on
release.
• If there were any medical personnel present just before, during or after ill-treatment
- if so, did they identify themselves and what was their role?
• If there are or were any long term effects (physical or mental) that the victim
attributes to the ill-treatment.
What was the official response, if any, to the incident?
• Did the victim's family apply to the authorities for information about the victim at
any stage, including during the early stages of being in custody? Was there any
response?
• If the victim appeared before a magistrate or court at any time during the period of
custody, was he or she informed of any charges; was a legal representative there;
did the victim have any visible signs of injury at the time?
• Was the victim able to see a doctor either during or upon release from custody?
What kind of doctor was it, e.g. an independent practitioner, a prison doctor, a state
44

doctor? How did the victim get there? Did anyone accompany him or her? Once
there, did the doctor carry out an examination? Was anyone present during the
examination? Did the doctor issue a medical report? What did it say? Did the victim
have any obvious signs of injury at the time?
• Did the victim complain to anyone about ill-treatment or tell anyone in authority?
What was the response?
• Was any investigation carried out? What did it involve? Were any witnesses
interviewed? Were the alleged perpetrators interviewed? If the victim died while in
custody, was an autopsy carried out?
• Has the victim had any contact with the officials who took him or her into custody
(or other officials from the same branch or force) since the incident?
4.1.2 What can you do to obtain these details without influencing the content of the
account?
Describing what happened in such detail in a precise chronological manner does not come
easily to most victims. They will need your guidance in knowing which aspects to elaborate
upon - but remember that your role should be exactly that, to provide guidance, not to put
words in the interviewee's mouth. Always begin with general or open questions (questions to
which the answer is unlimited, e.g. 'did anything happen to you?', rather than 'were you
tortured?'), and become more specific on the basis of the information which is offered to you.
Case-Study:
Here are two very different ways of telling the same story:
Account 1 - Basic:
Harikumar, aged 23, reported that he was arrested on 23 January 2006, taken to
Madurai City Police Station and released without charge on 25 January. He alleged that
while in custody he was repeatedly hit on the head and on one occasion was electrically
shocked by officers unknown while being interrogated.
Account 2 - Elaborated:
Harikumar, aged 23, reported that he was arrested at his home at 5 a.m. on 23 January
1999, and taken to Madurai City Police Station where he arrived at 7 a.m. He was
placed in a cell by himself in the basement which had no windows, no toilet facilities and
was infested with rats.
Approximately 4 hours later, Harikumar was taken from the cell by two officers dressed
in civilian clothing, and taken to the 3 rd floor to an office on the right hand side of a long
corridor. The office was furnished with 3 grey plastic and metal chairs, a wooden desk
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and three grey metal filing cabinets. It had a small window with a closed blind on the wall
opposite to the door. A calendar with pictures of cars was hanging on the wall to the left
of the door. One officer was unusually short with curly hair and a beard. The other wore
glasses, had a small triangular scar above his right eyebrow, and smoked cigarettes.
Harikumar was kept in the office for two hours. During this time, he was asked
repeatedly by the officer with the scar to reveal information about a drug gang operating
in Madurai. When he said that he knew nothing about a drug gang, the officer with the
beard handcuffed his hands behind his back and repeatedly hit him on the head with a
yellow telephone directory which he took out of the top drawer of a filing cabinet.
Harikumar was returned to the same cell as before. Eighteen hours later, he was
collected again by two officers in civilian clothing. One was the officer with the scar from
the previous day. The other had short blond hair and a very deep voice. They took him
to the same office on the 3 rd floor. This time the blond-haired officer told him to remove
his shirt and handcuffed him again while sitting on a chair. The same officer took a black
rectangular box from the left-hand drawer of the desk, about 5 cm x 7 cm in size with
two metal prongs protruding from one end. He held it against Harikumar’s right nipple
and pressed a button. Harikumar heard a short buzzing sound and felt a severe pain in
the area of his nipple. This was repeated three times. Again, during the time he spent in
the office, the officer with the scar asked him questions about the Madurai drug gang
and the details of a large heroin consignment expected the following week.
Harikumar was released without charge on 25 January.
When interviewed at his home on 28 January by Santosham, a representative of NGO
X, it was possible to see two small round red marks 8 mm apart beside Harikumar's right
nipple as well as purple and yellow marks of bruising in a circular pattern around his
wrists. He also revealed large areas of bruising in the lower back and noticeable
swelling in the kidney area, and complained of pain when urinating. He also complained
of a continuous headache and a ringing sound in his ears. He seemed nervous as he
described the events, had dark circles under his eyes, shifted position repeatedly and
appeared to be cold although the temperature was normal.
Account 1 is not inaccurate or wrong - it simply lacks detail. However, this detail is the key to
many possible courses of action you might wish to pursue. If you look at Account 1, you can
see that it presents the basic elements for a torture allegation (victim; perpetrator with
connection to the authorities; ill-treatment) but the description of the ill-treatment is minimal
and there is little indication of who the individual perpetrators might be or of how the
allegation might be corroborated. This makes it difficult for any significant action to be taken
in connection with the allegation.
Account 2, on the other hand, is extremely detailed and informative, and provides many
opportunities for corroboration. In addition to presenting the basic elements for a torture
allegation, it:
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• Gives many details about the individual perpetrators which should make identification
possible
• Describes the location and lay-out of the office where the ill-treatment took place in
such a way as to make it possible to find it if a visit to the police station were carried
out
• May make it possible to find the instruments used in the ill-treatment if a visit to the
police station were carried out
• Makes the purpose of the arrest and interrogation clear
• Gives some detail of the conditions in which the victim was detained
• Describes the ill-treatment in a precise way such as to make it possible for a medical
expert to express an opinion on its relationship with the victim's injuries
• Describes the victim's injuries, including a basic indication of his emotional state
The questions which Santosham may have asked in order to obtain the more complete
account could include the following:
Harikumar's
Statement:
Santosham's Questions:
I was arrested on
23 January
Where did the arrest take place?
At what time did the arrest take place?
I was taken to
Madurai City Police
Station
When did you arrive at the
police station?
Where were you taken when
you arrived there?
Was there anyone else in the
cell with you?
Were there any windows in the
cell?
Were there any toilet facilities
in the cell?
What was the hygiene of the
cell like?
While I was in
custody, I was
repeatedly hit on
the head
When did this happen?
Where did this happen?
How did you get there?
Did you go up or down?
What exactly happened once
you got there?
Were you free to move about?
You say you were hit - who hit
you?
Did they use anything to hit
you with?
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Who brought you there?
What did they look like?
Did you notice anything
unusual about them?
What was the office like?
Was it furnished?
Did you notice where they got
it from?
Did they say anything to you or
ask you any questions?
Can you remember what they
asked you about?
How long did this last?
Where did they take you
afterwards?
Did you notice anything special
about it?
Once I was
electrically shocked
while being
interrogated
When did this happen?
Where did this happen?
Who brought you there?
What happened once you got
there?
Were you free to move about?
What happened next?
What did the box look like?
What did he do with it?
Where exactly did he touch you
with it?
What did he do next?
Did you hear or feel anything?
How many times did this
happen?
Did they say anything or ask you
any questions?
Did the treatment leave any
marks?
Would you mind if I took a look
at them?
Are you suffering from any other
effects as a result of what
happened?
Account 2 could also be improved in certain ways, although it is already more than adequate
for most purposes. It does not identify possible witnesses - for example, we do not know if
anyone saw Harikumar being taken from his home. The description of the conditions of
detention is sketchy and could be elaborated upon. It does not indicate if Harikumar was
allowed to contact his lawyer or family, if he was given a medical examination at any stage
during his period in custody, or if he made a formal complaint about the ill-treatment to
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anyone in authority. It is also gives no information about what might have taken place
between Harikumar's second interrogation and his release.
More importantly, if you look carefully, you may notice that Santosham missed something.
Harikumar was arrested at 5 a.m., but only arrived at the police station at 7 a.m. Not being a
local, it did not occur to her to ask how far away the police station is from Harikumar's home.
In fact, it is three streets away. So what happened to Harikumar between 5 a.m. and 7 a.m.?
Santosham also missed another clue - the bruising and swelling in Harikumar's lower back
and kidney area and his complaints of pain when urinating. Even for a layman, these
symptoms would be difficult to reconcile with Harikumar's account of being hit on the head
and receiving electric shocks to the nipple, which he insisted was the only ill-treatment he
was subjected to at the police station. It seems likely that prior to being brought to the police
station, Harikumar was brought to a location where he was severely beaten or perhaps
kicked, particularly in the kidney area. Noticing the inconsistency in timing would have
revealed a further incident of ill-treatment which Harikumar may have forgotten to mention or
thought insignificant compared to what happened to him at the police station. Santosham
may have been too specific in her questioning in the early stages of the interview, asking him
what happened at the police station, rather than what happened to him after being taken
from his home, or simply asking what happened next.
4.2 Specific contexts
The examples and questions given in the preceding section on model information are very
much oriented towards incidents of ill-treatment in the context of police or other short-term
official custody because this is the most common type of allegation received. While most of
the general guidelines and elements will apply in other contexts, you need to be aware that
not all will be relevant or appropriate. When preparing for a visit to another type of institution
or for an interview relating to a context other than previously described, you should spend
some time thinking about the differences in the lines of questioning you might need to
explore.
Examples of institutions of long term detention would include prisons (holding both
remand and convicted prisoners), other places where prisoners awaiting trial are kept,
sometimes for a very long time, and juvenile detention centres. In such institutions, if you are
focusing on treatment inside the institution (rather than events which occurred prior to
imprisonment) you are unlikely to be concerned with questions of arrest or abduction.
Instead, you will need to ask more searching questions about the conditions of
imprisonment, the prison regime, relations with the warders and individual incidents of illtreatment.
In relation to the latter, you could ask the same type of questions as Santosham
did when enquiring about what happened to Harikumar when he was taken from his cell.
You should also be open to the possibility of group ill-treatment, or excessive use of force or
brutality in response to disciplinary problems such as riots.
It should not be forgotten, also, that institutions like prisons are a major source of allegations
relating to events which occurred prior to imprisonment, particularly police ill-treatment. This
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is especially the case among newly-arrived prisoners, because it may be the first time that
they feel secure enough to speak about their experiences.
In non-punitive custodial settings, such as children or old people's homes, or psychiatric
institutions, again your focus may need to be on the general environment and conditions,
relations with the supervisory staff, and any individual incidents of ill-treatment. In such
contexts, ill-treatment may often take the shape of physical or sexual abuse, but may also
involve various forms of psychological abuse. Remember that it is best for children to be
interviewed by someone with at least some experience of working with children. A practice
common to many psychiatric institutions which gives rise to controversy is the use of
restraints on residents.
In military institutions, problems may arise from the disciplinary regime, which is often very
tough. In such cases, it is probable that you will be investigating allegations of punishment
possibly amounting to ill-treatment, such as solitary confinement or withdrawal of certain
privileges. Remember to enquire not only about the punishment itself, how it is carried out,
how long it lasts, its frequency, etc., but also about the process by which punishments or
disciplinary measures are awarded. Another possible cause for concern may be official
tolerance of bullying within the armed forces, which could in certain cases amount to illtreatment.
It would be particularly important to record details concerning the exact form of
the bullying, its frequency and intensity, the number of persons involved, the extent to which
it is widespread, any physical or psychological effects the victim may be suffering, and any
indication of official tolerance of the practice.
In places of detention for foreigners, the issue may be ill-treatment of the foreigners by
the local police or other authorities (which should generally be approached in a similar way
to other forms of short-term custody), but it is most likely to concern the process for
deportation of persons to countries where they are believed to be at risk of torture. In such
cases, you will need to go through each stage of the deportation process in detail, and
obtain copies of the relevant decisions. You will also need to interview the person about their
reasons for fearing that they will be subjected to torture in order to establish a strong basis
for not deporting them. You will need to ask about any previous incidents of torture
undergone by the interviewee or close relatives, any threats received by them, and any other
reasons to fear that there is a risk to the person. Remember that you should focus on
current not prior risk.
In the case of abductions, disappearances and extra-judicial executions, you will not
generally be interviewing the victim himself, but more likely a relative or close acquaintance.
You will need to concentrate on the circumstances surrounding the disappearance of the
person, the modus operandi of the abductors, and particularly on the task of identifying
witnesses who may be able to provide information not only about the circumstances of the
arrest, but also about the condition of the victim at the time of being taken into custody.
Where the victim's body has been found, this will be very important to help establish that any
marks of injury on the body must have occurred during custody.
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When collecting allegations in camps for refugees and internally displaced persons, be
aware that you may receive allegations both about abuses which occurred prior to arriving in
the camp, and about abuses which have occurred inside the camp. It is very important to
keep very accurate records of the perpetrators of alleged incidents and to be very thorough
in seeking to identify them. This applies equally to allegations made in connection with
conflict zones generally.
5. Evidence
Making a strong allegation is not just about presenting somebody's account of what
happened to them. It is also about making others believe that the facts related are true. No
matter how credible and trustworthy an individual may seem to you in the interview, it is
important to collect as much supporting evidence as possible. There are several reasons for
this:
• First, unless the victim gives evidence in a court room, others are unlikely to have an
opportunity to observe his or her demeanour in the way that you have. This means
that you must take steps yourself to convince them that the victim is sincere.
• Second, all of the procedures, both domestic and international, are very wary of false
allegations, particularly in sensitive political contexts. The more evidence you can
supply, the less doubts they will have about the truth of the allegation.
• Finally, the judicial and quasi judicial procedures cannot generally make a finding of
guilt, whether it be of the state or of the individual perpetrator, on the basis of only an
accusation. This means that the case is unlikely to be successful unless there is
supporting evidence.
Evidence can take the shape of a medical report, a psychological evaluation, a victim
statement, witness statements, other forms of third party evidence, such as the testimony of
a medical or other expert, or objective evidence of a widespread occurrence of torture in the
circumstances referred to. It is anything which can help to support and prove an allegation.
5.1 Medical evidence
Technical procedures for medical personnel carrying out physical or psychological
examinations on alleged victims of torture are described in a number of other specialised
manuals and documents and will not be addressed in this section. However, it is important
for anyone wishing to report allegations of torture and other forms of ill-treatment to
understand the role of medical evidence, the difficulties it raises and some very basic
measures which may be taken to record such evidence in the absence of an opportunity to
refer an alleged victim to a medical expert for examination.
Medical evidence is probably the most important type of evidence that you can obtain and
can add strong support to witness testimony. It is rare for medical evidence to be conclusive
(prove with certainty that torture occurred), because:
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• Many forms of torture leave very few traces, and even fewer leave long-term physical
signs that they ever occurred
• It is often possible for injuries or marks which are alleged to have resulted from
torture to be the product of other causes
What medical evidence can do is demonstrate that injuries or behaviour patterns recorded in
the alleged victim are consistent with (could have been caused by) the torture described.
Where there is a combination of physical and psychological evidence consistent with an
allegation, this will strengthen the overall value of the medical evidence.
Both physical and psychological examinations will need to be carried out by specialised
medical personnel, not only because of the technical knowledge required, but also because
if the reports are to be of use in court, it will be necessary to establish that they have been
drawn up and interpreted by qualified professionals. However, this does not mean that you
should not record any physical marks or noticeable behaviour observed during the interview
- on the contrary, these can be extremely useful, particularly where it is not possible to carry
out a medical examination immediately. Careful questioning of the interviewee and recording
details of the way he or she was treated is at least as valuable as recording the physical and
psychological effects, and talking to a witness such as a spouse can greatly assist by finding
out how the victim appeared after the torture and noting any change in his or her demeanour
or behaviour
When obtaining medical evidence, it is important to be aware of the difference between
therapeutic (treating a patient's symptoms) and forensic (legal) medicine. The objective of
forensic medicine is to establish the causes and origins of injuries, and is a specialised field.
In many countries, both therapeutic and forensic functions are carried out by the same
health professionals, but where possible, you should seek the assistance of someone who
has forensic skills and understands the distinction between the two forms of medicine.
5.1.1 Physical evidence
If a doctor is not immediately available it is well worth recording visual evidence of abuse,
but only after the consent of the individual is obtained, having made it clear the you are not
a doctor and that you may not be able to obtain or influence any immediate treatment. In a
custodial setting any observations may have to be based on only a brief interview, but in a
non-custodial situation the interviewee may be able to partially undress and move about,
making possible more detailed observations.
External signs are more likely to be found within a few days of injury but should be looked for
even in late cases. Record as much information as you can. Remember that the absence of
any visible injury does not mean that no ill-treatment has taken place.
As a guide, the following should be noted:
• Any obvious injury such as swelling, bruises, cuts, grazes or burns.
• Any difficulty in movement of the body such as walking, climbing stairs, sitting or
standing up for long periods, bending down, or raising the arms.
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• Any deformity of shape or posture of the back or limbs.
How to record your findings:
• Note the SITE, SIZE, SHAPE, COLOUR and TYPE (cut, bruise, burn etc.) of any
injury.
• Use a ruler if possible, but otherwise make an estimate of size by comparison with a
common object (but avoid using objects of variable size, such as an orange).
• If there are numerous injuries, indicate them on a body diagram
• Photographs, even amateur ones, can be useful for experts to examine later. Ideally
they should include one picture that makes the general location of the injuries clear
and a closer picture of each individual site. These should include an indicator of size,
preferably a ruler, but even a common object such as a matchbox will serve. An
indication of the date is valuable. If available, a professional photographer can be
brought in later.
• Describe appearances as accurately and in as much detail as possible, e.g. "A purple
raised circular bruise 4cm in diameter on the outer aspect (outside) of the right arm
10cm above the elbow".
• Get the interviewee to demonstrate abnormality of movement or posture.
• Ask about the course of symptoms since the incident. An answer might be: "A week
ago I couldn't lift my arms to 90 degrees but now I can get them right up above my
head. I still can't move my wrist fully and my hand is still numb". Such statements can
be quoted word-for-word.
These guidelines can be adapted if you are required to examine a dead body. In such
cases, you should also keep a record of the conditions in which the body was found (e.g.
where it was situated, the kind of surface it was lying on, if the weather was very hot or very
cold, if the weather or the location was particularly damp) as this can help a forensic expert
to decide if they may have caused any marks on the body.
5.1.2 Psychological evidence
Even severe torture, expertly delivered, may leave no physical mark yet leave profound
psychological effects. This is especially true if the victim has suffered deliberate
psychological torture such as being held in continuous isolation, suffered religious or sexual
humiliation or been threatened with death or with harm to the family. Though a psychological
assessment of an individual can be made only by an expert, simple observations by a lay
person (non-professional) of the individual's demeanour or behaviour, together with any
subjective comments they may make about themselves (e.g. description of a nightmare,
suicidal thoughts) should be noted, to be interpreted by an expert at a later date.
• The following signs may be noticeable or recounted by the interviewee. Though they
are indicators of stress, they are mainly not specific for torture, though the subject of
dreams or flashbacks may indicate their source. Thoughts of the traumatic events
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persistently return, e.g. by recurrent and intrusive distressing recollections of the
events, recurrent distressing dreams of the events, sudden acting or feeling as if the
traumatic events were recurring (flashbacks).
• Intense distress when exposed to events that symbolise or resemble aspects of the
torture, shown by persistent avoidance of stimuli associated with the trauma, or
general emotional numbing.
• Symptoms of increased arousal such as difficulty in falling asleep, irritability or
outbursts of anger and difficulty in concentration. The interviewer may notice
restlessness, agitation or an exaggerated startle response.
As most psychological symptoms are subjective, it is very helpful to obtain corroborative
evidence from family or friends, such as: "He wakes up screaming and sweating at night,
with nightmares in which he is being tortured" or "He loses his temper easily. Before his
arrest he was easy-going and placid" or "She always avoids going past the place she was
arrested".
5.2 Statement of person making allegation
A written statement describing the events and signed by the victim or other person making
the allegation should be prepared wherever possible in a non-detention context. It will not be
essential in all circumstances, but helps in all proceedings to reinforce the credibility of the
allegation. In addition, the absence of such a written statement will affect the avenues
available to you, and may prevent the initiation of court proceedings.
The statement should describe in detail the incident(s) of torture and of the events leading
up to and subsequent to it or them. There is no particular format for such a statement, but it
should be as informative as possible. The kinds of details which should ideally be included
are those described in.
Such a statement does not need to be physically written by the person from whom the
statement is being taken - it can also be written, or preferably typed up, by the interviewer,
then read over by or, where the person is illiterate, read out to the person, who should then
approve it. It must, however, be signed or thumb-printed. If the statement is to be used in
judicial proceedings, it should be signed and dated not only by the person making the
statement, but also by the person taking the statement and, where possible, a second
witness.
Organisations often record such statements by asking the individual making the allegation to
fill out a standard questionnaire setting out the information required.
5.3 Witness evidence
Because torture often occurs in private, it can be difficult to find witnesses to the incident of
torture itself. Where there were witnesses, they may be reluctant to speak about what they
saw in case there are repercussions for them, or because the experience was simply too
traumatic. However, where witnesses exist and are willing to give a statement of what they
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saw, this can add very much to the credibility of the allegation, as well as provide new details
that the victim himself or person making the allegation might not be able to give. It can help
to reconstruct the chronology of events and set them in context. The purpose of witness
statements is to help to understand exactly what took place, and should therefore be as
detailed as possible.
Useful witnesses are not only those who witnessed the actual incident of torture.
• Those who were present at the time that the victim was taken into custody can give
very valuable information about the identity of the perpetrator, the way in which the
victim was treated while he or she was being taken away, and the condition of the
person at the time of being taken into custody. This can be particularly important
where the victim has died, but the body shows signs of torture and the state is
arguing that he or she was never taken into custody or that the injuries were not
inflicted by officials.
• If an individual knew that the victim had been receiving threatening phone calls or
messages prior to being taken into custody, this could be reported.
• Co-detainees can confirm that the victim was taken away for interrogation and
describe his or her condition both prior and subsequent to being taken away, or that
he or she was never returned. They can give evidence of sounds they heard, such as
screams or shouting, or of bloodstains or torture implements they might have seen.
They can give accounts of their own torture or that of other individuals they might
have witnessed which would help to establish that torture occurs in the establishment
in question, or that a particular police officer or prison warden has previously
engaged in torture. This can help to establish patterns, e.g. The police at station X
always take the victim to office Y on the Zth floor or prison guards always come after
the day shift leaves and they take the victim to a particular location in the prison
where ill-treatment is known to occur.
• A doctor who examined a detainee shortly after an incident may also be able to give
crucial evidence.
The best way to identify possible witnesses is to work through the chronology of what
happened with the victim, asking at each stage if anyone was present: at the time of taking
into custody; at the time of arrival at the relevant institution or location where they were held;
if they shared a cell or if there was anyone in adjacent cells; if anyone saw them being taken
away to be tortured, or witnessed the incident itself, or saw the resulting injuries or
unconsciousness; if anyone shared similar experiences with them. Where the victim is not
the person making the allegation because he or she is dead, disappeared or still in
detention, the next-of-kin, neighbours or members of the local community may still be able to
suggest possible witnesses, or may themselves be able to provide useful information.
Don't forget that the same principles of informed consent apply to witnesses as to victims.
This applies particularly where you are taking a written statement. In the case of an informal
discussion with a possible witness which you do not intend to cite, it may not be necessary
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to go into detail, and will depend on the circumstances. Remember never to name an
individual without his or her consent, however.
As with statements taken from the person alleging torture, written witness statements should
be signed and dated by both the witness and the person taking the statement.
5.4 Other types of evidence
There is no prescribed list of other types of supporting evidence. The type of evidence you
may wish to use will depend very much on the allegation you are trying to prove and will
need to be identified on a case by case basis. You should try to identify, on the one hand,
evidence which supports the specific case, and on the other, objective evidence which helps
to show how the allegation fits into the overall picture. It pays to be creative and the
possibilities are vast. Examples of other types of evidence include:
• Media reports: Such evidence should be used with some caution, and would
generally be insufficient to initiate a complaint, but it can be very useful to provide
independent evidence that an incident took place or to provide an indication of the
general situation.
• Expert reports: These could be specially commissioned medical or forensic reports,
ballistics reports, or any other form of expert testimony or research.
• Official reports and statements: The findings of reports produced by special
domestic inquiries or visits from international bodies, e.g. a UN Special Rapporteur,
or a CPT delegation, can be referred to in order to provide a more official source of
information. Resolutions adopted by international bodies expressing concern about
the situation in a country can also be used, e.g. resolutions of the UN Commission on
Human Rights, the OAS General Assembly or the European Parliament. For
deportation cases, the UN High Commissioner for Refugees can provide valuable
information. The United States State Department also produces annual reports on
the human rights situation throughout the world.
• Any evidence of a practice of torture in the country or region in question: Such
material adds credibility to the allegation, as it shows that there are precedents for
the kind of behaviour complained of. It is of particular relevance in cases where the
objective is to stop deportation of an individual to a country where he or she is at risk
of torture - while the individual must be in a position to show that he or she is
personally at risk, this will be made easier if it can be shown that torture is a common
occurrence in the country in question.
Such information is most easily found in NGO reports. However, the value of such
reports will vary according to the reputation of the organisation in question. Reports
which tend to sensationalize the situation in a country will carry very little weight, and
reports of national NGOs may be treated with some caution because, although they
have a close-up view of the situation, they may also be perceived as less objective. If
these are the only reports available, they should of course be submitted. Ideally,
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however, where they exist, reports by large international NGOs which are generally
respected for their accuracy and reliability are the best to opt for - they can then be
supplemented by the reports of smaller and national NGOs.
• Specific research: If you want to demonstrate a particular point, patterns could also
be identified by specific research of your own. For example, you could try to show
that there is official tolerance of torture by collecting a significant number of cases in
which no prosecution has been opened or where perpetrators have not been found
guilty in spite of strong evidence; or a medical expert might be found who would be
willing to give evidence that he or she has come across many torture-related injuries
in the region.
Copies of domestic decisions: If you want to bring a case before one of the international
complaint procedures, you will need to show that the victim was not able to obtain a remedy
at the domestic level. In order to do this, you will need to provide copies of any domestic
decisions, whether judicial or administrative, taken in the case. This would include any
decisions not to prosecute or not to open an investigation, and copies of any petitions made
by the victim or victim's family, as well as any court decisions taken.
SOURCE: Largely borrowed from The Torture Reporting Handbook- by Camille Giffard,
Human Rights Centre, University of Essex, with modifications
Available at: http://www.essex.ac.uk/torturehandbook/english.htm
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III. NATIONAL LEGAL REGIME IN COMBATING TORTURE
A) Relevant provisions of Indian laws
i) Status of International Treaties in Domestic Law
India is a party to many international conventions/covenants which prohibits acts of torture.
But there are no explicit provisions in the constitution regulating the incorporation of and
status of international law in Indian legal system. Article 51(c) stipulates as one of directive
principles of state policy, that: “The state shall endeavor to foster respect for international
law and treaty obligations in the dealings of organized people with other”.
In this regard Article 253 of the Constitution read as follows;
Article 253. Legislation for giving effect to international agreements.- Notwithstanding
anything in the foregoing provisions of this Chapter, Parliament has power to make any law
for the whole or any part of the territory of India for implementing any treaty, agreement or
convention with any other country or countries or any decision made at any international
conference, association or other body.
For the successful implementation of International laws in the domestic legal system they
have to be transformed in to domestic law by the legislative act and the Union has the
exclusive power in this regard under Art.253 of the Constitution and to this end it has
passed only Geneva Conventions Act, 1960.
The judicial opinion in India as expressed in numerous recent judgments demonstrates that
the rules of international law should be construed harmoniously, and only when there is an
inevitable conflict between these two laws should municipal law should prevail over
international law .The supreme court has even gone a step further by repeatedly holding,
when interpreting the fundamental rights provisions of the constitution, that those provisions
of the International Covenant on Civil and Political Rights ,which elucidate and effectuate the
fundamental rights guaranteed by the constitution can be relied upon by the courts as facets
of those fundamental rights and are, therefore, enforceable.
The Supreme Court in Chairman, Railway Board v. Chandrima Das (1993) 2 SCC 746
observed, the applicability of the Universal Declaration of Human Rights and principles
thereof may have to be read, if need be, into the domestic jurisprudence.
In People's Union for Civil Liberties v. Union of India, (1997) 3 SCC 433, at page 442,
the Supreme Court stated that, “For the present, it would suffice to state that the
provisions of the covenant, which elucidate and go to effectuate the fundamental rights
guaranteed by our Constitution, can certainly be relied upon by courts as facets of those
fundamental rights and hence, enforceable as such.”
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In Vishaka v State of Rajasthan (1997) 6 SCC 241 the Supreme Court held that it is now
an accepted rule of judicial construction that regard must be had to international conventions
and norms for construing domestic law when there is no inconsistency between them and
there is a void in the domestic law. In the absence of domestic law occupying the field, to
formulate effective measures to check the evil of sexual harassment of working women at all
work places, the contents of International Conventions and norms are significant for the
purpose of interpretation of the guarantee of gender equality, right to work with human
dignity in Articles 14, 15, 19(1)(g) and 21 of the Constitution and the safeguards against
sexual harassment implicit therein. Any International Convention not inconsistent with the
fundamental rights and in harmony with its spirit must be read into these provisions to
enlarge the meaning and content thereof, to promote the object of the constitutional
guarantees. This is implicit from Article 51(c) and the enabling power of the Parliament to
enact laws for implementing the International Conventions and norms by virtue of Art. 253
read with Entry 14 of the Union List in Seventh Schedule of the Constitution.
In Apparel Export Promotion v A.K. Chopra 1999 (1) SCC 759, the SC has stated that “In
cases involving violation of human rights, the courts must remain alive to the international
instruments and conventions and apply the same to a given case where there is no
inconsistency between the international norms and the domestic law occupying the field.”
ii) Criminal accountability under statutory law
Although there is no specific offence for torture, perpetrators may be held criminally
accountable for acts of torture under the offences listed below. Many of the offences do not
have the gravity of torture but may have been committed in the course of perpetrating torture
or cruel, inhuman, or degrading treatment and could prove easier to press charges with.
Indian Penal Code, 1860:
S.119. Public servant concealing design to commit offence which it is his duty to
prevent
Whoever, being a public servant, intending to facilitate or knowing it to be likely that he will
thereby facilitate the commission of an offence which it is his duty as such public servant to
prevent;
voluntarily conceals, by any act or illegal omission, the existence of a design to commit such
offence, or makes any representation which he knows to be false respecting such design;
If offence be committed- shall, if the offence be committed, be punished with imprisonment
of any description provided for the offence, for a term which may extend to one-half of the
longest term of such imprisonment, or with such fine as is provided for that offence, or with
both;
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If offence be punishable with death, etc- or, if the offence be punishable with death or
imprisonment for life, with imprisonment of either description for a term which may extend to
ten years;
If offence be not committed- or if the offence be not committed, shall be punished with
imprisonment of any description provided for the offence for a term which may extend to
one-fourth part of the longest term of such imprisonment or with such fine as is provided for
the offence, or with both.
S.166. Public servant disobeying law, with intent to cause injury to any person
Whoever, being a public servant, knowingly disobeys any direction of the law as to the way
in which he is to conduct himself as such public servant, intending to cause, or knowing it to
be likely that he will, by such disobedience, cause injury to any person, shall be punished
with simple imprisonment for a term which may extend to one year, or with fine, or with both.
S.220. Commitment for trial or confinement by person having authority who knows
that he is acting contrary to law.-
Whoever, being in any office which gives him legal authority to commit persons for trial to
confinement, or to keep persons in confinement, corruptly or maliciously commits any person
for trial or confinement, or keeps any person in confinement, in the exercise of that authority,
knowing that in so doing he is acting contrary to law, shall be punished with imprisonment of
either description for a term which may extend to seven years, or with fine, or with both.
S.299. Culpable homicide
Whoever causes death by doing an act with the intention of causing death, or with the
intention of causing such bodily injury as is likely to cause death, or with the knowledge that
he is likely by such act to cause death, commits the offence of culpable homicide.
Explanation 1- A person who causes bodily injury to another who is labouring under a
disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be
deemed to have caused his death.
Explanation 2- Where death is caused by bodily injury, the person who causes such bodily
injury shall be deemed to have caused the death, although by resorting to proper remedies
and skilful treatment the death might have been prevented.
Explanation 3- The causing of the death of child in the mother's womb is not homicide. But it
may amount to culpable homicide to cause the death of a living child, if any part of that child
has been brought forth, though the child may not have breathed or been completely born.
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S.300. Murder
Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which
the death is caused is done with the intention of causing death, or-
Secondly- If it is done with the intention of causing such bodily injury as the offender knows
to be likely to cause the death of the person to whom the harm is caused, or-
Thirdly- If it is done with the intention of causing bodily injury to any person and the bodily
injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-
Fourthly,- If the person committing the act knows that it is so imminently dangerous that it
must, in all probability, cause death or such bodily injury as is likely to cause death, and
commits such act without any excuse for incurring the risk of causing death or such injury as
aforesaid.
Exception 3- Culpable homicide is not murder if the offender, being a public servant or
aiding a public servant acting for the advancement of public justice, exceeds the powers
given to him by law, and causes death by doing an act which he, in good faith, believes to
be lawful and necessary for the due discharge of his duty as such public servant and without
ill-will towards the person whose death is caused.
S.302. Punishment for murder –
Whoever commits murder shall be punished with death, or imprisonment for life, and shall
also be liable to fine.
S.304. Punishment for culpable homicide not amounting to murder
Whoever commits culpable homicide not amounting to murder shall be punished with
imprisonment for life, or imprisonment of either description for a term which may extend to
ten years, and shall also be liable to fine, if the act by which the death is caused is done with
the intention of causing death, or of causing such bodily injury as is likely to cause death, or
with imprisonment of either description for a term which may extend to ten years, or with fine,
or with both, if the act is done with the knowledge that it is likely to cause death, but without
any intention to cause death, or to cause such bodily injury as is likely to cause death.
S.304A. Causing death by negligence
Whoever causes the death of any person by doing any rash or negligent act not amounting
to culpable homicide, shall be punished with imprisonment of either description for a term
which may extend to two years, or with fine, or with both.
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S.304B. Dowry death
(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise
than under normal circumstances within seven years of her marriage and it is shown that
soon before her death she was subjected to cruelty or harassment by her husband or any
relative of her husband for, or in connection with, any demand for dowry, such death shall be
called "dowry death", and such husband or relative shall be deemed to have caused her
death.
Explanation- For the purpose of this sub-section, "dowry" shall have the same meaning. as
in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
2) Whoever commits dowry death shall be punished with imprisonment for a term which shall
not be less than seven years but which may extend to imprisonment for life.]
S.319. Hurt
Whoever cases bodily pain, disease or infirmity to any person is said to cause hurt.
S.320. Grievous hurt
The following kinds of hurt only are designated as "grievous":-
First- Emasculation.
Secondly- Permanent privation of the sight of either eye.
Thirdly- Permanent privation of the hearing of either ear,
Fourthly- Privation of any member or joint.
Fifthly- Destruction or permanent impairing of the powers of any member or joint.
Sixthly- Permanent disfiguration of the head or face.
Seventhly- Fracture or dislocation of a bone or tooth.
Eighthly- Any hurt which endangers life or which causes the sufferer to be during the space
of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.
S.321. Voluntarily causing hurt
Whoever does any act with the intention of thereby causing hurt to any person, or with the
knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt
to any person, is said "voluntarily to cause hurt".
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S.322. Voluntarily causing grievous hurt
Whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be
likely to cause is grievous hurt, and if the hurt which he causes grievous hurt, is said
"voluntarily to cause grievous hurt."
Explanation- A person is not said voluntarily to cause grievous hurt except when he both
causes grievous hurt and intends or knows himself to be likely to cause grievous hurt. But he
is said voluntarily to cause grievous hurt, if intending or knowing himself to be likely to cause
grievous hurt of one kind, he actually causes grievous hurt of another kind.
S.323. Punishment for voluntarily causing hurt.-
Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be
punished with imprisonment of either description for a term which may extend to one year,
or with fine which may extend to one thousand rupees, or with both.
S.330. Voluntarily causing hurt to extort confession or to compel restoration of
property.-
Whoever voluntarily causes hurt, for the purpose of extorting from the sufferer or any person
interested in the sufferer, any confession or any information which may lead to the detection
of an offence or misconduct, or for the purpose of constraining the sufferer or any person
interested in the sufferer to restore or to cause the restoration of any property or valuable
security or to satisfy any claim or demand, or to give information which may lead to the
restoration of any property or valuable security, shall be punished with imprisonment of
either description for a term which may extend to seven years, and shall also be liable to
fine.
S.331. Voluntarily causing grievous hurt to extort confession, or to compel restoration
of property
Whoever voluntarily causes grievous hurt for the purpose of extorting from the sufferer or
from any person interested in the sufferer any confession or any information which may lead
to the detection of an offence or misconduct, or for the purpose of constraining the sufferer
or any person interested in the sufferer to restore or to cause the restoration of any property
or valuable security, or to satisfy any claim or demand or to give information which may lead
to the restoration of any property or valuable security, shall be punished with imprisonment
of either description for a term which may extend to ten years, and shall also be liable to fine.
S.340. Wrongful confinement
Whoever wrongfully restrains any person in such a manner as to prevent that person from
proceedings beyond certain circumscribing limits, is said "wrongfully to confine" that person.
S.341. Punishment for wrongful restraint
Whoever wrongfully restrains any person shall be punished with simple imprisonment for a
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term which may extend to one month, or with fine which may extend to five hundred rupees,
or with both.
S.342. Punishment for wrongful confinement
Whoever wrongfully confines any person shall be punished with imprisonment of either
description for a term which may extend to one year, or with fine which may extend to one
thousand rupees, or with both.
S.343. Wrongful confinement for three or more days
Whoever wrongfully confines any person for three days, or more, shall be punished with
imprisonment of either description for a term which may extend to two years, or with fine, or
with both.
S.344. Wrongful confinement for ten or more days
Whoever wrongfully confines any person for ten days, or more, shall be punished with
imprisonment of either description for a term which may extend to three years, and shall also
be liable to fine.
S.345. Wrongful confinement of person for whose liberation writ has been issued
Whoever keeps any person in wrongful confinement, knowing that a writ for the liberation of
that person has been duly issued, shall be punished with imprisonment of either description
for a term which may extend to two years in addition to any term of imprisonment to which
he may be liable under any other section of this Chapter.
S.346. Wrongful confinement in secret
Whoever wrongfully confines any person in such manner as to indicate an intention that the
confinement of such person may not be known to any person interested in the person so
confined, or to any public servant, or that the place of such confinement may not be known
to or discovered by any such person or public servant as here in before mentioned, shall be
punished with imprisonment of either description for a term which may extend to two years in
addition to any other punishment to which he may be liable for such wrongful confinement.
S.347. Wrongful confinement to extort property, or constrain to illegal act
Whoever wrongfully confines any person for the purpose of extorting from the person
confined, or from any person interested in the person confined, any property or valuable
security or of constraining the person confined or any person interested in such person to do
anything. illegal or to give any information which may facilitate the commission of an offence,
shall be punished with imprisonment of either description for a term which may extend to
three years, and shall also be liable to fine.
S.348. Wrongful confinement to extort confession, or compel restoration of property
Whoever wrongfully confines any person for the purpose of extorting from the person
confined or any person interested in the person confined any confession or any information
which may lead to the detection of an offence or misconduct, or for the purpose of
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constraining the person confined or any person interested in the person confined to restore
or to cause the restoration of any property or valuable security or to satisfy any claim or
demand, or to give information which may lead to the restoration of any property or valuable
security, shall be punished with imprisonment of either description for a term which may
extend to three years, and shall also be liable to fine.
S.350. Criminal force
Whoever intentionally uses force to any person, without that person's consent, in order to the
committing of any offence, or intending by the use of such force to cause, or knowing it to be
likely that by the use of such force he will cause injury, fear or annoyance to the person to
whom the force is used, is said to use criminal force to that other.
S.351. Assault
Whoever makes any gesture, or any preparation intending or knowing. it to be likely that
such gesture or preparation will cause any person present to apprehend that he who makes
that gesture or preparation is about to use criminal force to that person, is said to commit an
assault.
Explanation- Mere words do not amount to an assault. But the words which a person uses
may give to his gestures or preparation such a meaning as may make those gestures or
preparations amount to an assault.
S.354. Assault or criminal force to woman with intent to outrage her modesty.-
Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to
be likely that he will thereby outrage her modesty, shall be punished with imprisonment of
either description for a term which may extend to two years, or with fine, or with both.
S.355. Assault or criminal force with intent to dishonour person, otherwise than on
grave provocation.-
Whoever assaults or uses criminal force to any person, intending thereby to dishonour that
person, otherwise than on grave and sudden provocation given by that person, shall be
punished with imprisonment of either description for a term which may extend to two years,
or with fine, or with both.
S.357. Assault or criminal force in attempt wrongfully to confine a person.-
Whoever assaults or uses criminal force to any person, in attempting wrongfully to confine
that person, shall be punished with imprisonment of either description for a term which may
extend to one year, or with fine which may extend to one thousand rupees, or with both.
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S.375. Rape
A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual
intercourse with a woman under circumstances falling under any of the six following
descriptions:-
First- Against her will.
Secondly, - Without her consent.
Thirdly-
With her consent, when her consent has been obtained by putting her or any
person in whom she is interested in fear of death or of hurt.
Fourthly- With her consent, when the man knows that he is not her husband, and that her
consent is given because she believes that he is another man to whom she is or believes
herself to be lawfully married.
Fifthly - With her consent, when, at the time of giving such consent, by reason of
unsoundness of mind or intoxication or the administration by him personally or through
another of any stupefying or unwholesome substance, she is unable to understand the
nature and consequences of that to which she gives consent.
Sixthly - With or without her consent, when she is under sixteen years of age.
Explanation- Penetration is sufficient to constitute the sexual intercourse necessary to the
offence of rape.
Exception- Sexual intercourse by a man with his own wife, the wife not being under fifteen
years of age, is not rape.
(2) Whoever,-
(a) being a police officer commits rape-
(i) within the limits of the police station to which he is appointed; or
(ii) in the premises of any station house whether or not situated in the
police station to which he is appointed; or
(iii) on a woman in his custody or in the custody of a police officer
subordinate to him; or
(b) being, a public servant, takes advantage of his official position and
commits rape on a woman in his custody as such public servant or in the
custody of a public servant subordinate to him; or
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(c) being on the management or on the staff of a jail, remand home or other
place of custody established by or under any law for the time being in force or
of a woman's or children's institution takes advantage of his official position
and commits rape on any inmate of such jail, remand home, place or
institution; or
(d) being, on the management or on the staff of a hospital, takes advantage
of his official position and commits rape on a woman in that hospital; or
(e) commits rape on a woman knowing her to be pregnant; or
(f) commits rape on a woman when she is under twelve years of age; or
(g) commits gang rape,
shall be punished with rigorous imprisonment for a term which shall not be
less than ten years but which may be for life and shall also be liable to fine:
Provided that the court may, for adequate and special reasons to be mentioned in the
judgment, impose a sentence of imprisonment of either description for a term of less
than ten years.
S.376-B. Intercourse by public servant with woman in his custody.-
Whoever, being a public servant, takes advantage of his official position and induces or
seduces, any woman, who is in his custody as such public servant or in the custody of a
public servant subordinate to him, to have sexual intercourse with him, such sexual
intercourse not amounting to the offence of rape, shall be punished with imprisonment of
either description for a term which may extend to five years and shall also be liable to fine
S.376-C. Intercourse by superintendent of jail, remand home, etc.-
Whoever, being the superintendent or manager of a jail, remand home or other place of
custody established by or under any law for the time being in force or of a woman's or
children's institution takes advantage of his official position and induces or seduces any
female inmate of such jail, remand home, place or institution to have sexual intercourse with
him, such sexual intercourse not amounting to the offence of rape, shall be punished with
imprisonment of either description for a term which may extend to five years and shall also
be liable to fine.
Explanation 1- "Superintendent" in relation to jail, remand home or other place of custody or
a women’s or- children's institution includes a person holding any other office in such jail,
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emand home, place or institution by virtue of which he can exercise any authority or control
over its inmates.
Explanation 2- The expression "women's or children's institution" shall have the same
meaning as in Explanation 2 to sub-section (2) of section 376
S.498A. Husband or relative of husband of a woman subjecting her to cruelty
Whoever, being the husband or the relative of the husband of a woman, subjects such
woman to cruelty shall be punished with imprisonment for a term which may extend to three
years and shall also be liable to fine.
Explanation- For the purpose of this section, "cruelty" means-
(a) any willful conduct which is of such a nature as is likely to drive the woman to commit
suicide or to cause grave injury or danger to life, limb or health (whether mental or
physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or
any person related to her to meet any unlawful demand for any property or valuable
security or is on account of failure by her or any person related to her to meet such
demand
S.503. Criminal intimidation.-
Whoever threatens another with any injury to his person, reputation or property, or to the
person or reputation of any one in whom that person is interested, with intent to cause alarm
to that person, or to cause that person to do any act which he is not legally bound to do, or to
omit to do any act which that person is legally entitled to do, as the means of avoiding the
execution of such threat, commits criminal intimidation.
Explanation.-A threat to injure the reputation of any deceased person in whom the person
threatened is interested, is within this section.
S.506. Punishment for criminal intimidation.- Whoever commits the offence of criminal
intimidation shall be punished with imprisonment of either description for a term which may
extend to two years, or with fine, or with both;
If threat be to cause death or grievous hurt, etc.- and if the threat be to cause death or
grievous hurt, or to cause the destruction of any property by fire, or to cause an offence
punishable with death or imprisonment for life , or with imprisonment for a term which may
extend to seven years, or to impute unchastity to a woman, shall be punished with
imprisonment of either description for a term which may extend to seven years, or with fine, or
with both.
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S.509. Word, gesture or act intended to insult the modesty of a woman
Whoever, intending to insult the modesty of any woman, utters any word, makes any sound
or gesture, or exhibits any object, intending that such word or sound shall be heard, or that
such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such
woman, shall be punished with simple imprisonment for a term which may extend to one
year, or with fine, or with both.
Juvenile Justice Act, 2000
S.23 Punishment for cruelty to juvenile or child.-
Whoever, having the actual charge of, or control over, a juvenile or the child, assaults,
abandons, exposes or willfully neglects the juvenile or causes or procures him to be
assaulted, abandoned, exposed or neglected in a manner likely to cause such juvenile or the
child unnecessary mental or physical suffering shall be punishable with imprisonment for a
team which may extend to six months, or fine, or with both.
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
S.3. Punishments for offences of atrocities.-
(1) Whoever, not being a member of Scheduled Caste or a Scheduled Tribe, -
i. forces a member of a Scheduled Caste or a Scheduled Tribe to drink or eat any
inedible or obnoxious substance;
ii. acts with intent to cause injury, insult or annoyance to any member of a
Scheduled Caste or a Scheduled Tribe by dumping excreta, waste matter,
carcasses or any other obnoxious s
iii. forcibly removes clothes from the person of a member of a Scheduled Caste or a
Scheduled Tribe or parades him naked or with painted face or body or commits
any similar act which is derogatory to human dignity;
iv. wrongfully occupies or cultivates any land owned by, or allotted to, or notified by
any competent authority to be allotted to, a member of a Scheduled Caste or a
Scheduled Tribe or gets the land allotted to him transferred;
v. wrongfully dispossesses a member of a Scheduled Caste or a Scheduled Tribe
from his land or premises or interferes with the enjoyment of his rights over any
land, premises or water;
vi. compels or entices a member of a Scheduled Caste or a Scheduled Tribe to do
'begar' or other similar forms of forced or bonded labour other than any
compulsory service for public purposes imposed by Government;
vii. forces or intimidates a member of a Scheduled Caste or a Scheduled Tribe not to
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vote or to vote to a particular candidate or to vote in a manner other than that
provided by law;
viii. institutes false, malicious or vexatious suit or criminal or other legal proceedings
against a member of a Scheduled Caste or a Scheduled Tribe;
ix. gives any false or frivolous information to any public servant and thereby causes
such public servant to use his lawful power to the injury or annoyance of a
member of a Scheduled Caste or a Scheduled Tribe;
x. intentionally insults or intimidates with intent to humiliate a member of a
Scheduled Caste or a Scheduled Tribe in any place within public view;
xi. assaults or uses force to any woman belonging to a Scheduled Caste or a
Scheduled Tribe with intent to dishonor or outrage her modesty;
xii. being in a position to dominate the will of a woman belonging to a Scheduled
Caste or a Scheduled Tribe and uses that position to exploit her sexually to which
she would not have otherwise agreed;
xiii. corrupts or fouls the water of any spring, reservoir or any other source ordinarily
used by members of the Scheduled Castes or the Scheduled Tribes so as to
render it less fit for the purposes for which it is ordinarily used;
xiv. denies a member of a Scheduled Caste or a Scheduled Tribe any customary right
or passage to a place of public resort or obstructs such member so as to prevent
him from using or having access to a place of public resort to which other
members of public or any section thereof have a right to use or access to;
xv. forces or causes a member of a Scheduled Caste or a Scheduled Tribe to leave
his house, village or other place of residence,
shall be punishable with imprisonment for a term which shall not be less than six
months but which may extend to five years and with fine.
(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, --
i. gives or fabricates false evidence intending thereby to cause, or knowing it to be
likely that he will thereby cause, any member of a Scheduled Caste or a
Scheduled Tribe to be convicted of an offence which is capital by the law for the
time being in force shall be punished with imprisonment for life and with fine; and
if an innocent member of a Scheduled Caste or a Scheduled Tribe be convicted
and executed in consequence of such false or fabricated evidence, the person
who gives or fabricates such false evidence, shall be punished with death;
ii. gives or fabricates false evidence intending thereby to cause, or knowing it to be
likely that he will thereby cause, any member of a Scheduled Caste or a
Scheduled Tribe to be convicted of an offence which is not capital but punishable
with imprisonment for a term of seven years or upwards, shall be punishable with
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imprisonment for a term which shall not be less than six months but which may
extend to seven years or upwards and with fine;
iii. commits mischief by fire or any explosive substance intending to cause or
knowing it to be likely that he will thereby cause damage to any property
belonging to a member of a Scheduled Caste or a Scheduled Tribe, shall be
punishable with imprisonment for a term which shall not be less than six months
but which may extend to seven years and with fine;
iv. commits mischief by fire or any explosive substance intending to cause or
knowing it to be likely that he will thereby cause destruction of any building which
is ordinarily used as a place of worship o as a place for human dwelling or as a
place for custody of the property by a member of a Scheduled Caste or a
Scheduled Tribe, shall be punishable with imprisonment for life and with fine;
v. commits any offence under the Indian Penal Code (45 of 1860) punishable with
imprisonment for a term of ten years or more against a person or property on the
ground that such person is a member of a Scheduled Caste or a Scheduled Tribe
or such-property belongs to such member, shall be punishable with imprisonment
for life and with fine;
vi. knowingly or having reason to believe that an offence has been committed under
this Chapter, causes any evidence of the commission of that offence to disappear
with the intention of screening the offender from legal punishment, or with that
intention gives any information respecting the offence which he knows or believes
to be false, shall be punishable with the punishment provided for that offence; or
vii. being a public servant, commits any offence under this section, shall be
punishable with imprisonment for a term which shall not be less than one year but
which may extend to the punishment provided for that offence.
S.4. Punishment for neglect of duties.-
Whoever, being a public servant but not being a member of a Scheduled Caste or a
Scheduled Tribe, willfully neglects his duties required to be performed by him under this Act,
shall be punishable with imprisonment for a term which shall not be less than six months but
which may extend to one year.
The Police Act, 1861
S.29. Penalties for neglect of duty, etc:-
Every police-officer who shall be guilty of any violation of duty or willful breach or neglect of
any rule or regulation of lawful order made by competent authority, or who shall withdraw
from the duties of his office without permission, or without having given previous notice for
the period of two months, or who, being absent on leave shall fail, without reasonable cause,
to report himself for duty on the expiration of such leave] or who shall engage without
authority in any employment other than his police duty, or who shall be guilty of cowardice,
or who shall offer any unwarrantable personal violence to any person in his custody,
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shall be liable, on conviction before a Magistrate, to a penalty not exceeding three months’
pay, or to imprisonment, with or without hard labour, for a period not exceeding three
months, or to both.
Army Act, 1950.
S.45. Unbecoming conduct.-
Any officer, junior commissioned officer or warrant officer who behaves in a manner
unbecoming his position and the character expected of him shall, on conviction by courtmartial,
if he is an officer, be liable to be cashiered or to suffer such less punishment as is in
this Act mentioned; and, if he is a junior commissioned officer or a warrant officer, be liable
to be dismissed or to suffer such less punishment as is this Act mentioned.
S.46. Certain forms of disgraceful conduct.-
Any person subject to this Act who commits any of the following offences, that is to say,--
a. is guilty of any disgraceful conduct of a cruel, indecent or unnatural kind; or
b. malingers, or feigns, or produces disease or infirmity in himself, or intentionally
delays his cure or aggravates his disease or infirmity; or
c. with intent to render himself or any other person unfit for service, voluntarily
causes hurt to himself or that person;
shall, on conviction by court-martial, be liable to suffer imprisonment for a term
which may extend to seven years or such less punishment as is in this Act
mentioned.
S.47. Ill-treating a subordinate.- Any officer, junior commissioned officer, warrant officer or
non-commissioned officer who uses criminal force to or otherwise ill-treats any person
subject to this Act, being his subordinate in rank or position, shall, on conviction by courtmartial,
be liable to suffer imprisonment for a term which may extend to seven years or such
less punishment as is in this Act mentioned
S.50. Irregularity in connection with arrest or confinement.-
Any person subject to this Act who commits any of the following offences, that is to say,--
a. unnecessarily detains a person in arrest or confinement without bringing him to trial, or
fails to bring his case before the proper authority for investigation; or
b. having committed a person to military custody fails without reasonable cause to deliver
at the time of such committal, or as soon as practicable, and in any case within fortyeight
hours thereafter, to the officer or other person into whose custody the person
arrested is commits, an account in writing signed by himself of the offence with which the
person so committed is charged ;
shall, on conviction by court-martial, be liable to suffer imprisonment for a term which
may extend to two years or such less punishment as is in this Act mentioned.
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S.64. Miscellaneous offences.-
Any person subject to this Act who commits any of the following offences, that is to say,--
(a) being is command at any post or on the march, and receiving a complaint that any one
under his command has beaten or otherwise maltreated or oppressed any person, or has
disturbed any fair or market, or committed any riot or trespass, fails to have due reparation
made to the injured person or to report the case to the proper authority ; or
(f) commits any offence against the property or person of any inhabitant of, or resident in, the
country in which he is serving;
shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may
extend to seven years or such less punishment as is in this Act mentioned.
S.65. Attempt.- Any person subject to this Act who attempts to commit any of the offence
specified in sections 34 to 64 inclusive and in such attempt does any act towards the
commission of the offence, shall, on conviction by court-martial, where no express provision
is made by this Act for the punishment of such attempt, be liable.
if the offence attempted to be committed is punishable with death, to suffer imprisonment for
a term which may extend to fourteen years or such less punishment as is in this Act
mentioned; and
if the offence attempted to be committed is punishable with imprisonment, to suffer
imprisonment for a term which may extend to one-half of the longest term provided for that
offence or such less punishment as is in this Act mentioned.
S.66. Abetment of offences that have been committed.- Any person subject to this Act
who abets the commission of any of the offences specified in sections 34 to 64 inclusive
shall, on conviction by court-martial, if the Act abetted is committed in consequence of the
abetment and no express provision is made by this Act for the punishment of such abetment,
be liable to suffer the punishment provided for that offence or such less punishment as is in
this Act mentioned
iii) Law Relating to Arrest
Constitution of India
Article.20. Protection in respect of conviction for offences.-
(1) No person shall be convicted of any offence except for violation of a law in force at
the time of the commission of the Act charged as an offence, nor be subjected to a
penalty greater than that which might have been inflicted under the law in force at the
time of the commission of the offence.
(2) No person shall be prosecuted and punished for the same offence more than once.
(3) No person accused of any offence shall be compelled to be a witness against
himself.
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Article.21. Protection of life and personal liberty.-
No person shall be deprived of his life or personal liberty except according to procedure
established by law.
Article.22. Protection against arrest and detention in certain cases.-
(1) No person who is arrested shall be detained in custody without being informed, as
soon as may be, of the grounds for such arrest nor shall he be denied the right to
consult, and to be defended by, a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced before the
nearest magistrate within a period of twenty-four hours of such arrest excluding the
time necessary for the journey from the place of arrest to the court of the magistrate
and no such person shall be detained in custody beyond the said period without the
authority of a magistrate.
Code of Criminal Procedure (Cr.PC)
S. 41 When police may arrest without warrant.-
Any police officer may without an order from a Magistrate and without a warrant, arrest
any persona.
who has been concerned in any cognizable offence, or against whom a reasonable
complaint has been made, or credible information has been received, or a
reasonable suspicion exists, of his having been so concerned; or
b. who has in his possession without lawful excuse, the burden of proving which excuse
shall lie on such person, any implement of house-breaking; or
c. who has been proclaimed as an offender either under this Code or by order of the
State Government; or
d. in whose possession anything is found which may reasonably be suspected to be
stolen property and who may reasonably be suspected of having committed an
offence with reference to such thing; or
e. who obstructs a police officer while in the execution of his duty, or who has escaped,
or attempts to escape, from lawful custody; or
f. who is reasonably suspected of being a deserter from any of the Armed Forces of the
Union; or
g. who has been concerned in, or against whom a reasonable complaint has been
made, or credible information has been received, or a reasonable suspicion exists, of
his having been concerned in, any act committed at any place out of India which, if
committed in India, would have been punishable as an offence, and for which he is,
under any law relating to extradition, or otherwise, liable to be apprehended or
detained in custody in India; or
h. who, being a released convict, commits a breach of any rule made under sub-section
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(5) of section 356; or
i. for whose arrest any requisition, whether written or oral, has been received from
another police officer, provided that the requisition specifies the person to be arrested
and the offence or other cause for which the arrest is to be made and it appears
therefrom that the person might lawfully be arrested without a warrant by the officer
who issued the requisition.
S.46. Arrest how made.-
(1) In making an arrest the police officer or other person making the same shall actually
touch or confine the body of the person to be arrested, unless there be a submission to the
custody by word or action.
(2) If such person forcibly resists the endeavor to arrest him, or attempts to evade the arrest,
such police officer or other person may use all means necessary to effect the arrest.
(3) Nothing in this section gives a right to cause the death of a person who is not accused
of an offence punishable with death or with imprisonment for life.
(4) Save in exceptional circumstances, no women shall be arrested after sunset and before
sunrise, and where such exceptional circumstances exist, the woman police officer shall, by
making a written report, obtain the prior permission of the Judicial Magistrate of the first
class within whose local jurisdiction the offence is committed or the arrest is to be made.
S.49. No unnecessary restraint.-
The Person arrested shall not be subjected to more restraint than is necessary to prevent his
escape.
S.50. Person arrested to be informed of grounds of arrest and of right to bail.-
(1) Every police officer or other person arresting any person without warrant shall forthwith
communicate to him full particulars of the offence for which he is arrested or other grounds
for such arrest.
(2) Where a police officer arrests without warrant any person other than a person accused of
a non-bailable offence, he shall inform the person arrested that he is entitled to be released
on bail and that he may arrange for sureties on his behalf.
S.50A. Obligation of person making arrest to inform about the arrest to inform about
the arrest, etc., to a nominated person-
(1) Every police officer or other person making any arrest under this Code shall forthwith
give the information regarding such arrest and place where the arrested person is being held
to any of his friends, relatives or such other persons as may be disclosed or nominated by
the arrested person for the purpose of giving such information.
(2) The police officer shall inform the arrested person of his rights under subsection (1) as
soon as he is brought to the police station.
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(3) An entry of the fact as to who has been informed of the arrest of such person shall be
made in a book to be kept in the police station in such form as may be prescribed in this
behalf by the State Government.
(4) It shall be the duty of the Magistrate before whom such arrested person is produced, to
satisfy himself that the requirements of sub-section (2) and sub-section (3) have been
complied with in respect of such arrested person.
S.53.Examination of accused by medical practitioner at the request of police officer.
(1) When a person is arrested on a charge of committing an offence of such a nature and
alleged to have been committed under such circumstances that there are reasonable
grounds for believing that an examination of his person will afford evidence as to the
commission of an offence, it shall be lawful for a registered medical practitioner, acting at the
request of a police officer not below the rank of sub-inspector, and for any person acting in
good faith in his aid and under his direction, to make such an examination of the person
arrested as is reasonably necessary in order to ascertain the facts which may afford such
evidence, and to use such force as is reasonably necessary for that purpose.
(2) Whenever the person of a female is to be examined under this section, the examination
shall be made only by, or under the supervision of, a female registered medical practitioner.
Explanation.--In this section and in sections 53A and 54,--
(a) "examination" shall include the examination of blood, blood stains, semen, swabs in case
of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of
modern and scientific techniques including DNA profiling and such other tests which the
registered medical practitioner thinks necessary in a particular case;
(b) "registered medical practitioner" means a medical practitioner who possess any medical
qualification as defined in clause (h) of section 2 of the Indian Medical Council Act, 1956(102
of 1956) and whose name has been entered in a State Medical Register.
S.53A. Examination of person accused of rape by medical practitioner.—
(1) When a person is arrested on a charge of committing an offence of rape or an attempt to
commit rape and there are reasonable grounds for believing that an examination of his
person will afford evidence as to the commission of such offence, it shall be lawful for a
registered medical practitioner employed in a hospital run by the Government or by a local
authority and in the absence of such a practitioner within the radius of sixteen kilometers
from the place where the offence has been committed, by any other registered medical
practitioner, acting at the request of a police officer not below the rank of a sub-inspector,
and for any person acting in good faith in his aid and under his direction, to make such an
examination of the arrested person and to use such force as is reasonably necessary for that
purpose.
(2) The registered medical practitioner conducting such examination shall, without delay,
examine such person and prepare a report of his examination giving the following
particulars, namely:--
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(i) the name and address of the accused and of the person by whom he was brought,
(ii) the age of the accused,
(iii) marks of injury, if any, on the person of the accused,
(iv) the description of material taken from the person of the accused for DNA profiling, and
(v) other material particulars in reasonable detail.
(3) The report shall state precisely the reasons for each conclusion arrived at.
(4) The exact time of commencement and completion of the examination shall also be noted
in the report.
(5) The registered medical practitioner shall, without delay, forward the report of the
investigating officer, who shall forward it to the Magistrate referred to in section 173 as part
of the documents referred to in clause (a) of sub-section (5) of that section.
S.54. Examination of arrested person by medical practitioner at the request of the
arrested person.-
(1) When a person who is arrested, whether on a charge or otherwise, alleges, at the time
when he is produced before a Magistrate or at any time during the period of his detention in
custody that the examination of his body will afford evidence which will disprove the
commission by him of any offence or which will establish the commission by any other
person of any offence against his body, the Magistrate shall, if requested by the arrested
person so to do direct the examination of the body of such person by a registered medical
practitioner unless the Magistrate considers that the request is made for the purpose of
vexation or delay or for defeating the ends of justice.
(2) Where an examination is made under sub-section (1), a copy of the report of such
examination shall be furnished by the registered medical practitioner to the arrested person
or the person nominated by such arrested person.
S.54A. Identification of person arrested.—
Where a person is arrested on a charge of committing an offence and his identification by
any other person or persons is considered necessary for the purpose of investigation of such
offence, the Court, having jurisdiction may, on the request of the officer in charge of a police
station, direct the person so arrested to subject himself to identification by any person or
persons in such manner as the Court may deem fit.
S.56. Person arrested to be taken before Magistrate or officer in charge of police
station.-
A police officer making an arrest without warrant shall, without unnecessary delay and
subject to the provisions herein contained as to bail, take or send the person arrested before
a Magistrate having jurisdiction in the case, or before the officer in charge of a police station.
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S.57. Person arrested not to be detained more than twenty-four hours.-
No police officer shall detail in custody a person arrested without warrant for a longer period
than under all the circumstances of the case is reasonable, and such period shall not, in the
absence of a special order of a Magistrate under section 167, exceed twenty-four hours
exclusive of the time necessary for the journey from the place of arrest to the Magistrate's
Court.
S.58. Police to report apprehensions.-
Officers in charge of police stations shall report to the District Magistrate, or, if he so directs,
to the Sub-divisional Magistrate, the cases of all persons arrested without warrant, within the
limits of their respective stations, whether such persons have been admitted to bail or
otherwise.
75.Notification of substance of warrant.
The police officer or other person executing a warrant of arrest shall notify the substance
thereof to the person to be arrested, and, if so required, shall show him the warrant.
76.Person arrested to be brought before Court without delay.
The police officer or other person executing a warrant of arrest shall (subject to the
provisions of section 71 as to security) without unnecessary delay bring the person arrested
before the Court before which he is required by law to produce such person:
Provided that such delay shall not, in any case, exceed twenty-four hours exclusive of the
time necessary for the journey from the place of arrest to the Magistrate's Court.
iv) Law relating to the launching a complaint and investigation procedure
Complaint to the Police.
A victim of torture can lodge a complaint to the nearest police station; following are the
relevant provisions pertaining to the investigation into torture cases under the Criminal
Procedure Code. Complaints to the police may be made by any person in writing or are to be
recorded when made orally. The procedure to be followed by the police depends on whether
the offence in question is cognizable or non-cognizable. Cognisable offences are
investigated by the police. If the officer in charge of a police station refuses to record a
complaint concerning a cognizable offence, the complainant may send the substance of the
complaint, in writing, to the relevant Superintendent of Police. If the Superintendent is
satisfied that such information discloses the commission of a cognizable offence, he or she
shall either investigate the case him/herself or direct an investigation to be made by any
police officer subordinate to him. As a general rule, the officer-in-charge of the police station
is required to examine information received to establish whether there is reason to suspect
that a cognizable offence has been committed. Following are the relevant sections in the
Criminal Procedure Code dealing with the complaint procedure.
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Criminal Procedure Code
S.154.Information in cognizable cases.-
(1) Every information relating to the commission of a cognizable offence, if given orally to an
officer in charge of a police station, shall be reduced to writing by him or under his direction,
and be read over to the informant; and every such information, whether given in writing or
reduced to writing as aforesaid, shall be signed by the person giving it, and the substance
thereof shall be entered in a book to be kept by such officer in such form as the State
Government may prescribe in this behalf.
(2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free
of cost, to the informant.
(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to
record the information referred to in sub-section (1) may send the substance of such
information, in writing and by post, to the Superintendent of Police concerned who, if
satisfied that such information discloses the commission of a cognizable offence, shall either
investigate the case himself or direct an investigation to be made by any police officer
subordinate to him, in the manner provided by this Code, and such officer shall have all the
powers of an officer in charge of the police station in relation to that offence.
S.155.Information as to non-cognizable cases and investigation of such cases.-
1. When information is given to an officer in charge of a police station of the commission
within the limits of such station of a non-cognizable offence, he shall enter or cause to be
entered the substance of the information in a book to be kept by such officer in such form
as the State Government may prescribe in this behalf, and refer the informant to the
Magistrate.
2. No police officer shall investigate a non-cognizable case without the order of a
Magistrate having power to try such case or commit the case for trial.
3. Any police officer receiving such order may exercise the same powers in respect of the
investigation (except the power to arrest without warrant) as an officer in charge of a
police station may exercise in a cognizable case.
4. Where a case relates to two or more offences of which at least one is cognizable, the
case shall be deemed to be a cognizable case, not-withstanding that the other offences
are non-cognizable.
S.156.Police officers power to investigate cognizable case.-
1. Any officer in charge of a police station may, without the order of a Magistrate,
investigate any cognizable case which a Court having jurisdiction over the local area
within the limits of such station would have power to inquire into or try under the
provisions of Chapter XIII.
2. No proceeding of a police officer in any such case shall at any stage be called in
question on the ground that the case was one which such officer was not empowered
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under this section to investigate.
3. Any Magistrate empowered under section 190 may order such an investigation as
above-mentioned.
S.157.Procedure for investigation.-
(1) If, from information received or otherwise, an officer in charge of a police station has
reason to suspect the commission of an offence which he is empowered under section 156
to investigate, he shall forthwith send a report of the same to a Magistrate empowered to
take cognizance of such offence upon a police report and shall proceed in person, or shall
depute one of his subordinate officers not being below such rank as the State Government
may, by general or special order, prescribe in this behalf, to proceed, to the spot, to
investigate the facts and circumstances of the case, and, if necessary, to take measures for
the discovery and arrest of the offender:
Provided that-
(a) when information as to the commission of any such offence is given against any
person by name and the case is not of a serious nature, the officer in charge of a police
station need not proceed in person or depute a subordinate officer to make an investigation
on the spot;
(b) if it appears to the officer in charge of a police station that there is no sufficient
ground for entering on an investigation, he shall not investigate the case.
(2) In each of the cases mentioned in clauses (a) and (b) of the proviso to sub-section
(1), the officer in charge of the police station shall state in his report his reasons for not fully
complying with the requirements of that sub-section, and, in the case mentioned in clause
(b) of the said proviso, the officer shall also forthwith notify to the informant, if any, in such
manner as may be prescribed by the State Government, the fact that he will not investigate
the case or cause it to be investigated.
S.160. Police officers power to require attendance of witnesses.-
(1) Any police officer making an investigation under this Chapter may, by order in writing,
require the attendance before himself of any person being within the limits of his own or any
adjoining station who, from the information given or otherwise, appears to be acquainted
with the facts and circumstances of the case; and such person shall attend as so required:
Provided that no male person under the age of fifteen years or woman shall be required to
attend at any place other than the place in which such male person or woman resides.
(2) The State Government may, by rules made in this behalf, provide for the payment by the
police officer of the reasonable expenses of every person, attending under sub-section (1) at
any place other than his residence.
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S.161 (2). Examination of witnesses by police.-
(2) Such person shall be bound to answer truly all questions relating to such case put to him
by such officer, other than questions the answers to which would have a tendency to expose
him to a criminal charge or to a penalty or forfeiture.
S.162. Statements to police not to be signed: Use of statements in evidence.-
(1) No statement made by any person to a police officer in the course of an investigation
under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall
any such statement or any record thereof, whether in a police diary or otherwise, or any part
of such statement or record, be used for any purpose, save as hereinafter provided, at any
inquiry or trial in respect of any offence under investigation at the time when such statement
was made:
Provided that when any witness is called for the prosecution in such inquiry or trial whose
statement has been reduced into writing as aforesaid, any part of his statement, if duly
proved, may be used by the accused, and with the permission of the Court, by the
prosecution, to contradict such witness in the manner provided by section 145 of the Indian
Evidence Act , 1872; (1 of 1872) and when any part of such statement is so used, any part
thereof may also be used in the re-examination of such witness, but for the purpose only of
explaining any matter referred to in his cross-examination. (2) Nothing in this section shall be
deemed to apply to any statement falling within the provisions of clause (1) of section 32 of
the Indian Evidence Act, 1872, (1 of 1872) or to affect the provisions of section 27 of that
Act.
Explanation.- An omission to state a fact or circumstance in the statement referred to in subsection
(1) may amount to contradiction if the same appears to be significant and otherwise
relevant having regard to the context in which such omission occurs and whether any
omission amounts to a contradiction in the particular context shall be a question of fact.
S.163. No inducement to be offered.-
(1) No police officer or other person in authority shall offer or make, or cause to be offered or
made, any such inducement, threat or promise as is mentioned in section 24 of the Indian
Evidence Act, 1872(1 of 1872).
(2) But no police officer or other person shall prevent, by any caution or otherwise, any
person from making in the course of any investigation under this Chapter any statement
which he may be disposed to make of his own free will:
Provided that nothing in this sub-section shall affect the provisions of sub-section (4) of
section 164.
S.164. Recording of confessions and statements.-
(1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has
jurisdiction in the case, record any confession or statement made to him in the course of an
investigation under this Chapter or under any other law for the time being in force, or at any
time afterwards before the commencement of the inquiry or trial:
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Provided that no confession shall be recorded by a police officer on whom any power of a
Magistrate has been conferred under any law for the time being in force.
(2) The Magistrate shall, before recording any such confession, explain to the person making
it that he is not bound to make a confession and that, if he does so, it may be used as
evidence against him; and the Magistrate shall not record any such confession unless, upon
questioning the person making it, he has reason to believe that it is being made voluntarily.
(3) If at any time before the confession is recorded, the person appearing before the
Magistrate states that he is not willing to make the confession, the Magistrate shall not
authorize the detention of such person in police custody.
(4) Any such confession shall be recorded in the manner provided in section 281 for
recording the examination of an accused person and shall be signed by the person making
the confession; and the Magistrate shall make a memorandum at the foot of such record to
the following effect:-
"I have explained to (name) that he is not bound to make a confession and that, if he does
so, any confession he may make may be used as evidence against him and I believe that
this confession was voluntarily made. It was taken in my presence and hearing, and was
read over to the person making it and admitted by him to be correct, and it contains a full
and true account of the statement made by him.(Signed) A.B.Magistrate".
(5) Any statement (other than a confession) made under sub-section (1) shall be recorded in
such manner hereinafter provided for the recording of evidence as is, in the opinion of the
Magistrate, best fitted to the circumstances of the case; and the Magistrate shall have power
to administer oath to the person whose statement is so recorded.
(6) The Magistrate recording a confession or statement under this section shall forward it to
the Magistrate by whom the case is to be inquired into or tried.
S.164A. Medical examination of the victim of rape.—
(1) Where, during the stage when an offence of committing rape or attempt to commit rape is
under investigation, it is proposed to get the person of the woman with whom rape is alleged
or attempted to have been committed or attempted, examined by a medical expert, such
examination shall be conducted by a registered medical practitioner employed in a hospital
run by the Government or a local authority and in the absence of such a practitioner, by any
other registered medical practitioner, with the consent of such woman or of a person
competent to give such consent on her behalf and such woman shall be sent to such
registered medical practitioner within twenty-four hours from the time of receiving the
information relating to the commission of such offence.
(2) The registered medical practitioner, to whom such woman is sent shall, without delay,
examine her person and prepare a report of his examination giving the following particulars,
namely:--
(i) the name and address of the woman and of the person by whom she was brought;
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(ii) the age of the woman;
(iii) the description of material taken from the person of the woman for DNA profiling;
(iv) marks of injury, if any, on the person of the woman; (v) general mental condition of the
woman; and (vi) other material particulars in reasonable detail,
(3) The report shall state precisely the reasons for each conclusion arrived at.
(4) The report shall specifically record that the consent of the woman or of the person
competent, to give such consent on her behalf to such examination had been obtained.
(5) The exact time of commencement and completion of the examination shall also be noted
in the report.
(6) The registered medical practitioner shall, without delay forward the report to the
investigating officer who shall forward it to the Magistrate referred to in section 173 as part of
the documents referred to in clause (a) of sub-section (5) of that section.
(7) Nothing in this section shall be construed as rendering lawful any examination without the
consent of the woman or of any person competent to give such consent on her behalf.
Explanation.--For the purposes of this section, "examination" and "registered medical
practitioner" shall have the same meanings as in section 53.
165. Search by police officer.—(1) Whenever an officer in charge of police station or a
police officer making an investigation has reasonable grounds for believing that anything
necessary for the purposes of an investigation into any offence which he is authorised to
investigate may be found in any place within the limits of the police station of which he is in
charge, or to which he is attached, and that such thing cannot in his opinion be otherwise
obtained without undue delay, such officer may, after recording in writing the grounds of his
belief and specifying in such writing, so far as possible, the thing for which search is to be
made, search, or cause search to be made, for such thing in any place within the limits of
such station.
(2) A police officer proceeding under sub-section (1), shall, if practicable, conduct the search
in person.
(3) If he is unable to conduct the search in person, and there is no other person competent
to make the search present at the time, he may, after recording in writing his reasons for so
doing, require any officer subordinate to him to make the search, and he shall deliver to such
subordinate officer an order in writing, specifying the place to be searched, and so far as
possible, the thing for which search is to be made; and such subordinate officer may
thereupon search for such thing in such place.
(4) The provisions of this Code as to search-warrants and the general provisions as to
searches contained in section 100 shall, so far as may be, apply to a search made under this
section.
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(5) Copies of any record made under sub-section (1) or sub-section (3) shall forthwith be
sent to the nearest Magistrate empowered to take cognizance to the offence, and the owner
or occupier of the place searched shall, on application, be furnished, free of cost, with a copy
of the same by the Magistrate.
S.167 (1) Procedure when investigation cannot be completed in twenty four hours.-
Whenever any person is arrested and detained in custody, and it appears that the
investigation cannot be completed within the period of twenty-four hours fixed by section 57,
and there are grounds for believing that the accusation or information is well-founded, the
officer in charge of the police station or the police officer making the investigation, if he is not
below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a
copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the
same time forward the accused to such Magistrate.
S.173.Report of police officer on completion of investigation.-
(2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a
Magistrate empowered to take cognizance of the offence on a police report, a report in the
form prescribed by the State Government, stating –
(a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be acquainted with the circumstances of the
case;
(d) whether any offence appears to have been committed and, if so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so, whether with or without sureties;
(g) whether he has been forwarded in custody under section 170.
(ii) The officer shall also communicate, in such manner as may be prescribed by the State
Government, the action taken by him, to the person, if any, by whom the information relating
to the commission of the offence was first given.
(3) Where a superior officer of police has been appointed under section 158, the report shall,
in any case in which the State Government by general or special order so directs, be
submitted through that officer, and he may, pending the orders of the Magistrate, direct the
officer in charge of the police station to make further investigation.
(4) Whenever it appears from a report forwarded under this section that the accused has
been released on his bond, the Magistrate shall make such order for the discharge of such
bond or otherwise as he thinks fit.
(5) When such report is in respect of a case to which section 170 applies, the police officer
shall forward to the Magistrate along with the report-
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(a) all documents or relevant extracts thereof on which the prosecution proposes to rely
other than those already sent to the Magistrate during investigation;
(b) the statements recorded under section 161 of all the persons whom the prosecution
proposes to examine as its witnesses.
(6) If the police officer is of opinion that any part of any such statement is not relevant to the
subject-matter of the proceedings or that its disclosure to the accused is not essential in the
interest of justice and is inexpedient in the public interest, he shall indicate that part of the
statement and append a note requesting the Magistrate to exclude that part from the copies
to be granted to the accused and stating his reasons for making such request.
(7) Where the police officer investigating the case finds it convenient so to do, he may
furnish to the accused copies of all or any of the documents referred to in sub-section (5).
Indian Evidence Act
S.24. Confession by inducement, threat or promise when irrelevant in criminal
proceeding.-
A confession made by an accused person is irrelevant in a criminal proceeding, if the making
of the confession appears to the Court to have been caused by any inducement, threat or
promise, having reference to the charge against the accused person, proceeding from a
person in authority and sufficient, in the opinion of the Court, to give the accused person
grounds, which would appear to him reasonable, for supposing that by making it he would
gain any advantage or avoid any evil of a temporal nature in reference to the proceeding
against him.
S.25. Confession to police officer not to be proved.-
No confession made to police officer shall be proved as against a person accused of any
offence.
S.26. Confession by accused while in custody of police not to be proved against him.-
No confession made by any person whilst he is in the custody of a police-officer, unless it be
made in the immediate presence of a Magistrate, shall be proved as against such person.
S.27. How much of information received from accused may be proved.-
Provided that, when any fact is deposed to as discovered in consequence of information
received from a person accused of any offence, in the custody of a police officer, so much of
such information, whether it amounts to a confession or not, as relates distinctly to the fact
thereby discovered, may be proved.
S.32. Case in which statement of relevant fact by person who is dead or cannot be
found, etc. is relevant.-
Statements, written or verbal, of relevant facts made by a person who is dead, or who
cannot be found, or who has become incapable of giving evidence, or whose attendance
cannot be procured without an amount of delay or expense which, under the circumstances
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of the case, appears to the Court unreasonable, are themselves relevant facts in the
following cases –
When it relates to cause of death - When the statement is made by a person as to the cause
of his death, or as to any of the circumstances of the transaction which resulted in his death,
in cases in which the cause of that person's death comes into question.
Such statements are relevant whether the person who made them was or was not, at the
time when they were made, under expectation of death, and whatever may be the nature of
the proceeding in which the cause of his death comes into question.
Medical Evidence
The role of medical evidence is crucial to the proper investigation of torture or ill-treatment.
While increasingly torture is carried out without leaving signs or with signs resolving within
days leaving no permanent traces, experienced doctors can nevertheless evaluate
testimony, accounts of post-trauma symptoms and physical and mental sequelae and draw
conclusions from these.
Indian Evidence Act, 1872
S.45. Opinions of experts
When the Court has to form and opinion upon a point of foreign law or of science or art, or
as to identity of handwriting or finger impressions, the opinions upon that point of persons
specially skilled in such foreign law, science or art, or in questions as to identity of
handwriting or finger impressions are relevant facts.
Such persons are called experts.
S.46. Facts bearing upon opinions of experts
Facts, not otherwise relevant, are relevant if they support or are inconsistent with the
opinions of experts, when such opinions are relevant.Illustrations
(a) The question is, whether A was poisoned by a certain poison.
The fact that other persons, who were poisoned by that poison, exhibited certain
symptoms which experts affirm or deny to be symptoms of that poison is relevant.
(b) The question is, whether an obstruction to a harbour is caused by a certain sea-wall.
The fact that other harbours similarly situated in other respects, but where there were no
suc
h sea-walls, began to be obstructed at about the same time, are relevant.
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v) Law relating to Follow-Up Proceeding
Criminal Procedure Code
S.190.Cognizance of offences by Magistrates.- (1) Subject to the provisions of this
Chapter, any Magistrate of the first class, and any Magistrate of the second class specially
empowered in this behalf under sub-section (2), may take cognizance of any offence -
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own
knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take
cognizance under sub-section (1) of such offences as are within his competence to inquire
into or try
S.200.Examination of complainant.- A Magistrate taking cognizance of an offence on
complaint shall examine upon oath the complainant and the witnesses present, if any, and
the substance of such examination shall be reduced to writing and shall be signed by the
complainant and the witnesses, and also by the Magistrate:
Provided that, when the complaint is made in writing, the Magistrate need not examine the
complainant and the witnesses-
(a) if a public servant acting or purporting to act in the discharge of his official duties or a
Court has made the complainant; or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under
section 192:
Provided further that if the Magistrate makes over the case to another Magistrate under
section 192 after examining the complainant and the witnesses, the latter Magistrate need
not re-examine them.
S.202.Postponement of issue of process.-
(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take
cognizance or which has been made over to him under section 192, may, if he thinks fit and
shall in a case where the accused is residing at a place beyond the area in which he
exercises his jurisdiction, postpone the issue of process against the accused, and either
inquire into the case himself or direct an investigation to be made by a police officer or by
such other person as he thinks fit, for the purpose of deciding whether or not there is
sufficient ground for proceeding:
Provided that no such direction for investigation shall be made,—
(a) where it appears to the Magistrate that the offence complained of is triable exclusively
by the Court of Sessions; or
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(b) where the complaint has not been made by a Court, unless the complainant and the
witnesses present (if any) have been examined on oath under section 200.
(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of
witness on oath:
Provided that if it appears to the Magistrate that the offence complained of is triable
exclusively by the Court of Session, he shall call upon the complainant to produce all his
witnesses and examine them on oath.
(3) If an investigation under sub-section (1) is made by a person not being a police officer,
he shall have for that investigation all the powers conferred by this Code on an officer in
charge of a police station except the power to arrest without warrant.
S.204.Issue of process.-
(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground
for proceeding, and the case appears to be –
(a) a summons-case, he shall issue his summons for the attendance of the accused, or
(b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the
accused to be brought or to appear at a certain time before such Magistrate or (if he has no
jurisdiction himself) some other Magistrate having jurisdiction.
(2) No summons or warrant shall be issued against the accused under sub-section (1) until a
list of the prosecution witnesses has been filed.
(3) In a proceeding instituted upon a complaint made in writing, every summons or warrant
issued under sub-section (1) shall be accompanied by a copy of such complaint.
(4) When by any law for the time being in force any process-fees or other fees are payable,
no process shall be issued until the fees are paid and, if such fees are not paid within a
reasonable time, the Magistrate may dismiss the complaint.
(5) Nothing in this section shall be deemed to affect the provisions of section 87.
vi) Law Relating to Custodial Deaths
Criminal Procedure Code (Cr.PC)
S. 176 . Inquiry by Magistrate into cause of death.-
(1) When the case is of the nature referred to in clause (i) or clause (ii) of sub-section (3)
of section 174, the nearest Magistrate empowered to hold inquests shall, and in any
other case mentioned in sub-section (1) of section 174, any Magistrate so empowered
may hold an inquiry into the cause of death cither instead of, or in addition to, the
investigation held by the police officer; and if he docs so, he shall have all the powers
in conducting it which he would have in holding an inquiry into an offence.
(1A) Where,--
(a) any person dies or disappears, or
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(b) rape is alleged to have been committed on any woman,
while such person or woman is in the custody of the police or in any other custody
authorised by the Magistrate or the Court, under this Code in addition to the inquiry or
investigation held by the police, an inquiry shall be held by the Judicial Magistrate or the
Metropolitan Magistrate, as the case may be, within whose local jurisdiction the offences
has been committed.
(2) The Magistrate holding such an inquiry shall record the evidence taken by him in
connection therewith in any manner hereinafter prescribed according to the
circumstances of the case.
(3) Whenever such Magistrate considers it expedient to make an examination of the dead
body of any person who has been already interred, in order to discover the cause of his
death, the Magistrate may cause the body to be disinterested and examined.
(4) Where an inquiry is to be held under this section, the Magistrate shall, wherever
practicable, inform the relatives of the deceased whose names and addresses are
known, and shall allow them to remain present at the inquiry.
(5) The Judicial Magistrate or the Metropolitan Magistrate or Executive Magistrate or
police officer holding an inquiry or investigation, as the case may be, under sub-section
(1A) shall, within twenty-four hours of the death of a person, forward the body with a
view to its being examined to the nearest Civil Surgeon or other qualified medical
person (man) appointed in this behalf by the State Government, unless it is not
possible to do so for reasons to be recorded in writing.
Explanation.— In this section, the expression "relative" means parents, children brothers,
sisters and spouse.
vii) Law operating with regards to Limitation
Criminal Procedure Code
S.468. Bar to taking cognizance after lapse of the period of limitation:-
(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of
an offence of the category specified in sub-section (2), after the expiry of the period of
limitation.
(2) The period of limitation shall be:-
(a) six months, if the offence is punishable with fine only;
(b) one year, if the offence is punishable with imprisonment for a term not exceeding one
year;
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(c) three years, if the offence is punishable with imprisonment for a term exceeding one
year but not exceeding three years.
(3) For the purposes of this section, the period of limitation, in relation to offences which may
be tried together, shall be determined with reference to the offence which is punishable with
the more severe punishment or, as the case may be, the most severe punishment.
S.469. Commencement of the period of limitation:-
(1) The period of limitation, in relation to an offender, shall commence -
(a) on the date of the offence; or
(b) where the commission of the offence was not known to the person aggrieved by the
offence or to any police officer, the first day on which offence comes to the knowledge of
such person or to any police officer, whichever is earlier; or
(c) where it is not known by whom the offence committed, the first day on which the
identity of the offender is known to the person aggrieved by the offence or to the police
officer making investigation into the offence, whichever is earlier be excluded.
S.470. Exclusion of time in certain cases:---
(1) In computing the period of limitation, the time during which any person has been
prosecuting with due diligence another prosecution, whether in a Court of first instance or in
a Court of appeal or revision, against the offender, shall be excluded:
Provided that no such exclusion shall be made unless the prosecution relates to the same
facts and is prosecuted in good faith in a Court which from defect of jurisdiction or other
cause of a like nature, is unable to entertain it.
(2) Where the institution of the prosecution in respect of an offence has been stayed by an
injunction or order, then, in computing the period of limitation, the period of the continuance
of the injunction or order, the day on which it was issued or made, and the day on which it
was withdrawn, shall be excluded.
(3) Where notice of prosecution for an offence been given, or where, under any law for the
time being, in force, the previous consent or sanction of the Government or any other
authority is required for the institution of any prosecution for an offence, then, in computing
the period of limitation, the period of such notice or, as the case be, the time required for
obtaining such consent or sanction shall be excluded.
Explanation:- In computing the time required for obtaining the consent or sanction of the
Government or any other authority, the date on which the application was made for obtaining
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the consent or sanction and the date of receipt of the order of the Government or other
authority shall both be excluded.
(4) In computing the period of limitation, the time during which the offender,-
(a) has been absent from India or from any territory outside India which is under the
administration of the Central Government, or
(b) has avoided arrest by absconding or concealing himself, shall be excluded.
S.471. Exclusion of date on which Court is closed:- Where the period of limitation expires
on a day when the Court is closed, the Court may take cognizance on the day on which the
Court reopens.
Explanation - A Court shall be deemed to be closed on any day within the meaning of this
section, if, during its normal working hours, it remains closed on that day.
S.472. Continuing offence:- In the case of a continuing offence, a fresh period of limitation
shall begin to run at every moment of the time during which the offence continues.
S.473. Extension of period of limitation in certain cases:- Notwithstanding anything
contained in the foregoing provisions of this chapter, any court may take cognizance of an
offence after the expiry of the period of limitation, if it is satisfied of the facts and in the
circumstances of the case that the delay has been properly explained or that it is necessary
so to do in the interests of justice.
The Police Act, 1861
S.42. Limitation of actions: - All actions and prosecutions against any person, which may
be lawfully brought for anything done or intended to be done under the provision of this Act,
or under the general police powers hereby given shall be commenced within three months
after the act complained of shall have been committed, and not otherwise; and notice in
writing of such action and of the cause thereof shall be given to the defendant, or to the
District Superintendent or an Assistant District Superintendent of the district in which the act
was committed, one month, at least before the commencement of the action.
Tender of amends.-No plaintiff shall recover in any such action, if tender of sufficient
amends shall have been made before such action brought, or if a sufficient sum of money
shall have been paid into Court after such action brought, by or on behalf of the defendant,
and though a decree shall be given for the plaintiff in any such action, such plaintiff shall not
have costs against the defendant, unless the Judge before whom the trial is held shall certify
his approbation of the action
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Proviso: - Provided always that no action shall, in any case, lie where such officers shall
have been prosecuted criminally for the same act.
COMMENTS
All actions and prosecutions may be instituted against any person--
(i) Within 3 months after the act complained of; and
(ii) By serving one month's notice in writing of action or cause to such person.
viii) Law of Appeals to the Judiciary
Constitution of India
Article 32: Remedies for enforcement of rights conferred by Part III
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs
in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this
Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause(2).
(4) The right guaranteed by this article shall not be suspended except as otherwise provided
for by this Constitution
Article 226. Power of High Courts to issue certain writs.—
(1) Notwithstanding anything in article 32 every High Court shall have power, throughout the
territories in relation to which it exercises jurisdiction, to issue to any person or authority,
including in appropriate cases, any Government, within those territories directions, orders or
writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto
and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III
and for any other purpose.
(2) The power conferred by clause (1) to issue directions, orders or writs to any Government,
authority or person may also be exercised by any High Court exercising jurisdiction in
relation to the territories within which the cause of action, wholly or in part, arises for the
exercise of such power, notwithstanding that the seat of such Government or authority or the
residence of such person is not within those territories.
(3) Where any party against whom an interim order, whether by way of injunction or stay or
in any other manner, is made on, or in any proceedings relating to, a petition under clause
(1), without—
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(a) furnishing to such party copies of such petition and all documents in support of the plea
for such interim order; and
(b) giving such party an opportunity of being heard,
makes an application to the High Court for the vacation of such order and furnishes a copy
of such application to the party in whose favour such order has been made or the counsel of
such party, the High Court shall dispose of the application within a period of two weeks from
the date on which it is received or from the date on which the copy of such application is so
furnished, whichever is later, or where the High Court is closed on the last day of that period,
before the expiry of the next day afterwards on which the High Court is open; and if the
application is not so disposed of, the interim order shall, on the expiry of that period, or, as
the case may be, the expiry of the said next day, stand vacated.
(4) The power conferred on a High Court by this article shall not be in derogation of the
power conferred on the Supreme Court by clause (2) of article 32.
Code of Criminal Procedure
S.374. Appeals from convictions.—
(1) Any person convicted on a trial held by a High Court in its extraordinary original criminal
jurisdiction may appeal to the Supreme Court.
(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions
Judge or on a trial held by any other Court in which a sentence of imprisonment for more
than seven years 1 [has been passed against him or against any other person convicted at
the same trial]; may appeal to the High Court.
(3) Save as otherwise provided in sub-section (2), any person,—
(a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or
Magistrate of the first class or of the second class, or
(b) sentenced under section 325, or
(c) in respect of whom an order has been made or a sentence has been passed under
section 360 by any Magistrate, may appeal to the Court of Session.
S.377. Appeal by the State Government against sentence.—
(1) Save as otherwise provided in sub-section (2), the State Government may in any case of
conviction on a trial held by any Court other than a High Court, direct the Public prosecutor
to present an appeal against the sentence on the ground of its inadequacy--
(a) to the Court of session, if the sentence is passed by the Magistrate; and
(b) to the High Court, if the sentence is passed by any other Court";
(b) in sub-section (3), for the words "the High Court", the words "the Court of Session or, as
the case may be, the High Court" shall be substituted
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(2) If such conviction is in a case in which the offence has been investigated by the Delhi
Special Police Establishment, constituted under the Delhi Special Police Establishment Act,
1946 (25 of 1946), or by any other agency empowered to make investigation into an offence
under any Central Act other than this Code,the Central Government may also direct the
Public Prosecutor to present an appeal to the High Court against the sentence on the ground
of its inadequacy.
(3) When an appeal has been filed against the sentence on the ground of its inadequacy, the
High Court shall not enhance the sentence except after giving to the accused a reasonable
opportunity of showing cause against such enhancement and while showing cause, the
accused may plead for his acquittal or for the reduction of the sentence.
S.378. Appeal in case of acquittal.—(1) Save as otherwise provided in sub-section (2) and
subject to the provisions of sub-sections (3) and (5),
a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal
to the Court of Session from an order of acquittal passed by a Magistrate in respect of a
cognizable and non-bailable offence;
(b) the State Government may, in any case, direct the Public Prosecutor to present an
appeal to the High Court from an original or appellate order of an acquittal passed by any
Court other than a High Court [not being an order under clause (a) or an order of acquittal
passed by the Court of Session in revision;
(2) If such an order of acquittal is passed in any case in which the offence has been
investigated by the Delhi Special Police Establishment constituted under the Delhi Special
Police Establishment Act, 1946 (25 of 1946) or by any other agency empowered to make
investigation into an offence under any Central Act other than this Code, the Central
Government may, subject to the provisions of sub-section (3), also direct the Public
Prosecutor to present an appeal--
(a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a
cognizable and non-bailable offence;
(b) to the High Court from an original or appellate order of an acquittal passed by any Court
other than a High Court [not being an order under clause (a) or an order of acquittal passed
by the Court of Session in revision
(3) No appeal to the High Court under sub-section (1) or sub-section (2) shall be entertained
except with the leave of the High Court.
(4) If such an order of acquittal is passed in any case instituted upon complaint and the High
Court, on an application made to it by the complainant in this behalf, grants special leave to
appeal from the order of acquittal, the complainant may present such an appeal to the High
Court.
(5) No application under sub-section (4) for the grant of special leave to appeal from an
order of acquittal shall be entertained by the High Court after the expiry of six months, where
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the complainant is a public servant, and sixty days in every other case, computed from the
date of that order of acquittal.
(6) If, in any case, the application under sub-section (4) for the grant of special leave to
appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie
under sub-section (1) or under sub-section (2).
S.379. Appeal against conviction by High Court in certain cases.—Where the High
Court has, on appeal reversed an order of acquittal of an accused person and convicted him
and sentenced him to death or to imprisonment for life or to imprisonment for a term often
years or more, he may appeal to the Supreme Court.
S.380. Special right of appeal in certain cases.—Notwithstanding anything contained in
this Chapter, when more persons than one are convicted in one trial, and an appealable
judgment of order has been passed in respect of any of such person, all or any of the
persons convicted at such trial shall have a right of appeal.
S.386. Powers of the Appellate Court.—After perusing such record and hearing the
appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and in case
of an appeal under section 377 or section 378, the accused, if he appears, the Appellate
Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal,
or may—
(a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry
be
made, or that the accused be re-tried or committed for trial, as the case may be, or find him
guilty and pass sentence on him according to taw;
(b) in an appeal from a conviction—
(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be
re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or
committed for trial, or
(ii) alter the finding, maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent, or the nature and
extent, of the sentence, but not so as to enhance the same;
(c) in an appeal for enhancement of sentence—
(i) reverse the finding and sentence and acquit or discharge the accused or order him to be
re-tried by a Court competent to try the offence, or
(ii) alter the finding maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent, or the nature and
extent, of the sentence, so as to enhance or reduce the same;
(d) in an appeal from any other order, alter or reverse such order;
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(3) make any amendment or any consequential or incidental order that may be just or
proper;
Provided that the sentence shall not be enhanced unless the accused has had an
opportunity of showing cause against such enhancement:
Provided further that the Appellate Court shall not inflict greater punishment for the offence
which in its opinion the accused has committed, than might have been inflicted for that
offence by the Court passing the order or sentence under appeal.
ix) Law relating to immunities available to the public servants
Indian legislation contains various provisions providing immunity to certain groups of public
officials for any offences committed in the discharge of their official duties with out the
previous sanction of the central or state government.
Criminal Procedure Code
S.45.Protection of members of the Armed Forces from arrest.-
1. Notwithstanding anything contained in sections 41 to 44 (both inclusive), no member of
the Armed Forces of the Union shall be arrested for anything done or purported to be
done by him in the discharge of his official duties except after obtaining the consent of
the Central Government.
2. The State Government may, by notification, direct that the provisions of sub-section (1)
shall apply to such class or category of the members of the Force charged with the
maintenance of public order as may be specified therein, wherever they may be serving,
and thereupon the provisions of that sub-section shall apply as if for the expression
"Central Government" occurring therein, the expression "State Government" were
substituted
S.197. Prosecution of Judges and public servants.-
1. When any person who is or was a Judge or Magistrate or a public servant not removable
from his office save by or with the sanction of the Government is accused of any offence
alleged to have been committed by him while acting or purporting to act in the discharge
of his official duty, no Court shall take cognizance of such offence except with the
previous sanction-
(a) in the case of a person who is employed or, as the case may be, was at the time of
commission of the alleged offence employed, in connection with the affairs of the Union,
of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of
commission of the alleged offence employed, in connection with the affairs of a State, of
the State Government.
2. No Court shall take cognizance of any offence alleged to have been committed by any
member of the Armed Forces of the Union while acting or purporting to act in the
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discharge of his official duty, except with the previous sanction of the Central
Government.
3. The State Government may, by notification, direct that the provisions of sub-section (2)
shall apply to such class or category of the members of the Forces charged with the
maintenance of public order as may be specified therein, wherever they may be serving,
and thereupon the provisions of that sub-section will apply as if for the expression
"Central Government" occurring therein, the expression "State Government" were
substituted.
4. The Central Government or the State Government, as the case may be, may determine
the person by whom, the manner in which, and the offence or offences for which, the
prosecution of such Judge, Magistrate or public servant is to be conducted, and may
specify the Court before which the trial is to be held
S.129.Dispersal of assembly by use of civil force.-
1. Any Executive Magistrate or officer in charge of a police station or, in the absence of
such officer in charge, any police officer, not below the rank of a sub-inspector, may
command any unlawful assembly, or any assembly of five or more persons likely to
cause a disturbance of the public peace, to disperse; and it shall thereupon be the duty
of the members of such assembly to disperse accordingly.
2. If, upon being so commanded, any such assembly does not disperse, or if, without being
so commanded, it conducts itself in such a manner as to show a determination not to
disperse, any Executive Magistrate or police officer referred to in sub-section (1), may
proceed to disperse such assembly by force, and may require the assistance of any
male person, not being an officer or member of the armed forces and acting as such, for
the purpose of dispersing such assembly, and, if necessary, arresting and confining the
persons who form part of it, in order to disperse such assembly or that they may be
punished according to law.
S.130.Use of armed forces to disperse assembly.-
1. If any such assembly cannot be otherwise dispersed, and if it is necessary for the public
security that it should be dispersed, the Executive Magistrate of the highest rank who is
present may cause it to be dispersed by the armed forces.
2. Such Magistrate may require any officer in command of any group of persons belonging
to the armed forces to disperse the assembly with the help of the armed forces under his
command, and to arrest and confine such persons forming part of it as the Magistrate
may direct, or as it may be necessary to arrest and confine in order to disperse the
assembly or to have them punished according to law.
3. Every such officer of the armed forces shall obey such requisition in such manner as he
thinks fit, but in so doing he shall use as little force, and do as little injury to person and
property, as may be consistent with dispersing the assembly and arresting and detaining
such persons.
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S.131.Power of certain armed force officers to disperse assembly.-When the public
security is manifestly endangered by any such assembly and no Executive Magistrate can
be communicated with, any commissioned or gazetted officer of the armed forces may
disperse such assembly with the help of the armed forces under his command, and may
arrest and confine any persons forming part of it, in order to disperse such assembly or that
they may be punished according to law; but if, while he is acting under this section, it
becomes practicable for him to communicate with an Executive Magistrate, he shall do so,
and shall thenceforward obey the instructions of the Magistrate, as to whether he shall or
shall not continue such action.
S.132. Protection against prosecution for acts done under preceding sections.-
(1)No prosecution against any person for any act purporting to be done under section 129,
section 130 or section 131 shall be instituted in any Criminal Court except –
(a) with the sanction of the Central Government where such person is an officer or member
of the armed forces;
(b) with the sanction of the State Government in any other case.
(2)
(a) No Executive Magistrate or police officer acting under any of the said sections in
good faith;
(b) no person doing any act in good faith in compliance with a requisition under section
129 or section 130;
(c) no officer of the armed forces acting under section 131 in good faith;
(d) no member of the armed forces doing any act in obedience to any order which he
was bound to obey, shall be deed to have thereby committed an offence.
(3) In this section and in the preceding sections of this Chapter, -
(a) the expression "armed forces" means the military, naval and air forces, operating
as land forces and includes any other Armed Forces of the Union so operating;
(b) "officer", in relation to the armed forces, means a person commissioned, gazetted
or in pay as an officer of the armed forces and includes a junior commissioned
officer, a warrant officer, a petty officer, a non-commissioned officer and a nongazetted
officer;
(c) "member", in relation to the armed forces, means a person in the armed forces
other than an officer.
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IMMUNITY UNDER ARMED FORCES SPECIAL POWERS ACTS:
The Armed Forces (Special Powers) Act, 1958 Act 28 of 1958, 11th September, 1958
An Act to enable certain special powers to be conferred upon members of the armed forces
in disturbed areas in the State of 1[Arunachal Pradesh, Assam, Manipur, Meghalaya,
Mizoram, Nagaland and Tripura].
S.6. Protection to Persons acting under Act –
No persecution, suit or other legal proceeding shall be instituted, except with the previous
sanction of the Central Government, against any person in respect of anything done or
purported to be done in exercise of the powers conferred by this Act.
Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 (No. 21 of 1990
S.7.Protection of persons acting in good faith under this Act.
No prosecution, suit or other legal proceeding shall be instituted, except with the previous
sanction of the Central Government, against any person in respect of anything done or
purported to be done in exercise of the powers conferred by this Act.
Armed Forces (Punjab and Chandigarh) Special Powers Act, 1983 (34 of 1983)
S.7. Protection of person acting in good faith under this Act.-
No prosecution, suit or other legal proceeding shall be instituted, except with the previous
sanction of the Central Government, against any person in respect of anything done or
purported to be done in exercise of the powers conferred by this Act.
The Terrorist and Disruptive Activities (prevention) Act, 1987
Repealed by the Repealing and Amending Act, 2001
S.26. Protection of action taken under this Act. — No suit, prosecution or other legal
proceeding shall lie against the Central Government or State Government or any other
authority on whom powers have been conferred under this Act or any rules made
thereunder, for anything which is in good faith done or purported to be done in pursuance of
this Act or any rules made thereunder or any order issued under any such rule.
Prevention Of Terrorism Act, 2002
Repealed by Prevention Of Terrorism (Repeal) Ordinance, 2004
S. 57 . Protection of action taken in good faith.- No suit, prosecution or other legal
proceeding shall lie against the Central Government or a State Government or any officer or
authority of the Central Government or State Government or any other authority on whom
powers have been conferred under this Act, for anything which is in good faith done or
purported to be done in pursuance of this Act:
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Provided that no suit, prosecution or other legal proceedings shall lie against any serving
member or retired member of the armed forces or other para-military forces in respect of any
action taken or purported to be taken by him in good faith, in the course of any operation
directed towards combating terrorism.
Prevention Of Terrorism (Repeal) Ordinance, 2004
(1) The Prevention of Terrorism Act, 2002 is hereby repealed.
(2) The repeal of the said Act shall not affect-
(a) the previous operation of, or anything duly done or suffered under, the said Act, or
(b) any right, privilege or obligation or liability acquired, accrued or incurred under the said
Act, or
(c) any penalty, forfeiture or punishment incurred in respect of any offence under the said
Act, or
(d) any investigation, legal proceeding or remedy in respect of any such right, privilege,
obligation, liability, penalty, forfeiture or punishment as aforesaid,
The Police Act, 1861
Section 43. Plea that act was done under warrant:-
When any action of prosecution shall be brought or any proceedings held against any policeofficer
for any act done by him in such capacity, it shall be lawful for him to plead that such
act was done by him under the authority of a warrant issued by a Magistrate.
Such plea shall be proved by the production of the warrant directing the act, and purporting
to be signed by such Magistrate and the defendant shall, thereupon, be entitled to a decree
in his favour, notwithstanding any defect of jurisdiction in such Magistrate. No proof of the
signature of such Magistrate shall be necessary, unless the Court shall see reason to doubt
its being genuine:
Proviso: - Provided always that any remedy which the party may have against the authority
issuing such warrant shall not be affected by anything contained in this section.
Unlawful Activities (Prevention) Amendment Act, 2004
Section 49:- Protection of action taken No suit, prosecution or other legal proceeding shall
lie against-
(a) the Central Government or a State Government or any officer or authority of the
Central Government or State Government or District Magistrate or any officer authorised
in this behalf by the Government or the District Magistrate or any other authority on
whom powers have been conferred under this Act, for anything which is in good faith
done or purported to be done in pursuance of this Act or any rule or order made
thereunder; and
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(b) any serving or retired member of the armed forces or para-military forces in respect of
any action taken or purported to be taken by him in good faith, in the course of any
operation directed towards combating terrorism.
x) Law relating to the disciplinary sanctions
All public servants, including the members of Indian Police Service, Indian Army Service are
subjected to disciplinary sanctions ranging from censure to dismissal for wrong doing.
Constitution of india
Article 311.Dismissal, removal or reduction in rank of persons employed in civil capacities
under the Union or a State.- (1) No person who is a member of a civil service of the Union or
an all-India service or a civil service of a State or holds a civil post under the Union or a
State shall be dismissed or removed by a authority subordinate to that by which he was
appointed.
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except
after an inquiry in which he has been informed of the charges against him and given a
reasonable opportunity of being heard in respect of those charges.
Provided that where it is proposed after such inquiry, to impose upon him any such penalty,
such penalty may be imposed on the basis of the evidence adduced during such inquiry and
it shall not be necessary to give such person any opportunity of making representation on
the penalty proposed:
Provided further that this clause shall not apply-
(a) where a person is dismissed or removed or reduced in rank on the ground of conduct
which has led to his conviction on a criminal charge; or
(b) where the authority empowered to dismiss or remove a person or to reduce him in rank
ins satisfied that for some reason, to be recorded by that authority in writing, it is not
reasonably practicable to hold such inquiry; or
(c) where the President or the Governor, as the case may be, is satisfied that in the interest
of the security of the State, it is not expedient to hold such inquiry.
(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably
practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the
authority empowered to dismiss or remove such person or to reduce him in rank shall be
final.
The All India Services Rules can be used for discipline of government servants under
national government, please refer to the Service Rules relating to the particular state in India
for disciplinary rules for state government officials.
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The All India Services (Discipline And Appeal) Rules, 1969
PART III-PENALTIES AND DISCIPLINARY AUTHORITIES.
S.6. Penalties.- (1) The following penalties may, for good and sufficient reasons and as
hereinafter provided be imposed on a member of the Service, namely:-
Minor Penalties:
i. Censure;
ii. Withholding of promotions;
iii. recovery form pay of the whole, or part of any pecuniary loss caused to Government,
or to a company, association or body of individuals, whether incorporated or not, which
is wholly or substantially owned or controlled by Government, or to a local authority set
up by an Act of Parliament or of the Legislature of a State, by negligence or breach of
orders;
iv. Withholding of increments of pay;
Major Penalties:
v. reduction to a lower stage in the time scale of pay for a specified period with further
directions as to whether or not the member of the Service will earn increments during
the period of reduction and whether, on the expiry of such period, the reduction will or
will not have the effect of postponing future increments of his pay;
vi. reduction to a lower time scale of pay, grade or post which shall ordinarily be a bar to
promotion of the member of the Service to the time scale of pay, grade or post from
which he was reduced, with or without further direction regarding conditions of
restoration to the grade or post from which the member of the Service was reduced
and his seniority and pay on such restoration to that grade or post;
vii. Compulsory retirement: Provided that, if the circumstances of the case so warrant, the
authority imposing the penalty may direct that the retirement benefits admissible to the
member of the Service under the All India Services (Death-cum-Retirement Benefits)
Rules, 1958, shall be paid at such reduced scale as may not be less than two-thirds of
the appropriate scales indicated in Schedules 'A' and 'B' of the said rules;
viii. Removal from Service which shall not be a disqualification for future employment under
the Government;
ix. Dismissal from Service which shall ordinarily be a disqualification for future
employment under the Government.
Provided that every case in which the charge of acceptance from any person of any
gratification, other than legal remuneration, as a motive or reward for doing or for bearing
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to do any official act is established, the penalty mentioned in clause (viii) or clause (ix)
shall be imposed.
Provided further that in any exceptional case, and for special reasons recorded in writing
any other penalty may be imposed.
Explanation- The following shall not amount to a penalty within the meaning of this rule;
namely:-
i. Withholding of increments of pay of a member of the Service for failure to pass a
departmental examination in accordance with the rules or orders governing the service;
ii. Stoppage of a member of the Service at the efficiency bar in the time-scale of pay on
the ground of his unfitness to cross the bar;
iii. non-promotion of a member of the Service, whether in a substantive or officiating
capacity, to a post in the senior time-scale of pay on the ground of lack of adequate
length of service and experience or non-confirmation in the service, or failure to pass
the departmental examination;
iv. (iii-a) non-promotion of a member of the Service, whether in a substantive or officiating
capacity, after due consideration of his case to the selection grade or to a post carrying
pay above the time-scale of pay.
v. reversion of a member of the Service officiating in a higher grade or post to which
promotions are made by selection, to a lower grade or post after a period of trial not
exceeding three years on the ground that he is considered unsuitable for such higher
grade or post, or on any administrative ground unconnected with his conduct;
vi. reversion of a member of the Service, appointed on probation to the Service, to State
Service, during or at the end of the period of probation, in accordance with the terms of
appointment or the rules and orders governing such probation;
vii. replacement of the services of a member of the Service whose services have been
borrowed from a State Government at the disposal of the State Government
concerned;
viii. compulsory retirement of a member of the Service under the Provisions of the All India
Services (Death-cum-Retirement Benefit) Rules, 1958;
ix. termination of the service of a member of the Service, appointed on probotion, during
or at the end of the period of probation in accordance with the terms of the service or
the rules and orders governing such probation.
S.7. Authority to institute proceedings and to impose penalty- 20(1) Where a member of
the Service has committed any act or omission which renders him liable to any penalty
specified in rule 6-
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7(1)(a) if such act or omission was committed before his appointment to the Service-
(i) the State Government, if he is serving in connection with the affairs of that State, or is
deputed for service in any company, association or body of individuals, whether
incorporated or not, which is wholly or substantially owned or controlled by the
Government of that State or in a local authority set up by an Act of the Legislature of that
State; or
(ii) the Central Government, in any other case, shall alone be competent to institute
disciplinary proceedings against him and, subject to the provisions of sub-rule (2), to
impose on him such penalty specified in rule 6 as it thinks fit;
7(1)(b) If such act or omission was committed after his appointment to the Service-
i. while he was serving in connection with the affairs of a State, or is deputed for service
under any company, association or body of individuals, whether incorporated or not,
which is wholly or substantially owned or controlled by the Government of a State, or in
a local authority set up by an Act of the Legislature of that State, the Government of
that State; or
ii. while he was on training, the Government which deputed him for such training; or
iii. while he was on leave, the Government which sanctioned him the leave; or
iv. while he was under suspension, the Government which placed him or is deemed to
have placed him under suspension; or
v. if such act or omission is willful absence from duty after the expiry of leave, the
Government which sanctioned the leave; or
vi. while he was absent from duty otherwise than on leave, the Government which would
have been competent to institute disciplinary proceedings against him, had such act or
commission been committed immediately before such absence from duty; or
vii. the Central Government, in any other case, shall alone be competent to institute
disciplinary proceedings against him and, subject to provisions of sub-rule (2), to
impose on him such penalty specified in rule 6 as it thinks fit, and the Government,
company associations, body of individuals or local authority, as the case may be under
whom he is serving at the time of institution of such proceedings shall be bound to
render all reasonable facilities to the Government instituting and conducting such
proceedings.
Explanation.- For the purposes of clause (b) of sub-rule (1) where the Government of a
State is the authority competent to institute disciplinary proceedings against a member of
the Service, in the event of a reorganization of the State, the Government on whose cadre
he is borne after such reorganization shall be the authority competent to institute
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disciplinary proceedings and, subject to the provisions of sub-rule (2), to impose on him
any penalty specified in rule 6.
7 2 1(1A) Notwithstanding anything contained in sub-rule (1) the Director, Lal Bahadur
Shastri National Academy of administration, the Director, Sardar Vallabhbhai Patel
National Police Academy or the President, Forest Research Institute and Colleges, shall
be empowered to initiate disciplinary proceedings against a probationer who is undergoing
training at the Lal Bahadur Shastri National Academy of Administration, Sardar
Vallabhbhai Patel National Police Academy or Forest Research Institute and Colleges, as
the case may be, in respect of any misconduct or misbehavior during the period he spends
at the said Academy/Institute in accordance with the prescribed procedure laid down in
rule 10 of these rules. Thereafter the Director/President shall refer the case to the Central
Government with the relevant records for passing orders under rule 6 in consultation with
the commission.
7 (1-B) Notwithstanding anything contained in sub-rule (1), 23if, in any case, a question
arises as to the Government competent to institute disciplinary proceedings, it shall be
decided by the Central Government and the Government so decided by the Central
Government, as being competent to institute disciplinary proceedings (which may include
the Central Government also), shall alone be competent to institute disciplinary
proceedings against him and, subject to the provisions of sub-rule (2), to impose on him
such penalty specified in rule 6 as it thinks fit, and Government, company association,
body of individuals, or the local authority, as the case may be, under whom he is serving at
the time of the institution of such proceedings shall be bound to render all reasonable
facilities to the Government instituting and conducting such proceedings.
7 (2) the penalty of dismissal, removal or compulsory retirement shall not be imposed on a
member of the Service except by an order of the Central Government.
7(3) Where the punishing Government is not the Government on whose cadre the member
is borne, the latter Government shall be consulted before any penalty specified in rule 6 is
imposed:
Provided that in relation to the members of the Service borne on a Joint Cadre, the
punishing Government shall consult the Joint Cadre Authority:
Provided further that where the Government concerned are the Central Government and
the State Government or two State Governments and there is a difference of opinion
between the said Government in respect of any matter referred to in this rule, the matter
shall be referred to the Central Government for its decisions, which shall be passed in
consultation with the Commission.
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xi) Provisions for compensation in criminal law
Code of Criminal Procedure.
S.357. Order to pay compensation:-
(1) When a Court imposes a sentence of fine or a sentence (including a sentence of death)
of which fine forms a part, the Court may, when passing judgment, order the whole or any
part of the fine recovered to be applied:-
(a) in defraying the expenses of properly incurred in the prosecution;
(b) in the payment to any person of compensation for any loss or injury caused by the
offence, when compensation is, in the opinion of the Court, recoverable by such person
in a Civil Court;
(c) when any person is convicted of any offence for having caused the death of another
person or of having abetted the commission of such an offence, in paying compensation
to the persons who are, under the Fatal Accidents Act, 1855 (13 of 1855), entitled to
recover damages from the person sentenced for the loss resulting to them from such
death;
(d) when any person is convicted of any offence which includes theft, criminal
misappropriation, criminal breach of trust, or cheating, or of having dishonestly received
or retained or of having voluntarily assisted in disposing of, stolen property knowing or
having reason to believe the same to be stolen, in compensating any bona fide
purchaser of such property is restored to the possession of the person entitled thereto.
(2) If the fine is imposed in a case which is subject to appeal no such payment shall be made
before the period allowed for presenting the appeal has elapsed, or, if an appeal has
elapsed, or, if an appeal be presented, before the decision of the appeal.
(3) When a Court imposes a sentence, of which fine does not form a part, the Court may,
when passing judgment, order the accused person to pay, by way of compensation, such
amount as may be specified in the order to the person who has suffered any loss or injury by
reason of the act for which the accused person as been so sentenced.
(4) An order under this section may also be made by an Appellate Court or by the High Court
or Court of Session when exercising its powers of revision.
(5) At the time of awarding compensation in any subsequent civil suit relating to the same
matter, the Court shall take into account any sum paid or recovered as compensation under
this section.
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PLEA BARGAINING
265A. Application of the Chapter.--(1) This Chapter shall apply in respect of an accused
against whom--
(a) the report has been forwarded by the officer in charge of the police station under section
173 alleging therein that an offence appears to have been committed by him other than an
offence for which the punishment of death or of imprisonment for life or of imprisonment for a
term exceeding seven years has been provided under the law for the time being in force; or
(b) a Magistrate has taken cognizance of an offence on complaint, other than an offence for
which the punishment of death or of imprisonment for life or of imprisonment for a term
exceeding seven years, has been provided under the law for the time being in force, and
after examining complainant and witnesses under section 200, issued the process under
section 204,
but does not apply where such offence affects the socio-economic condition of the country or
has been committed against a woman, or a child below the age of fourteen years.
(2) For the purposes of sub-section (1), the Central Government shall, by notification,
determine the offences under the law for the time being in force which shall be the offences
affecting the socio-economic condition of the country.
265B. Application for plea bargaining.--(1) A person accused of an offence may file an
application for plea bargaining in the Court in which such offence is pending for trial.
(2) The application under sub-section (1) shall contain a brief description of the case relating
to which the application is filed including the offence to which the case relates and shall be
accompanied by an affidavit sworn by the accused stating therein that he has voluntarily
preferred, after understanding the nature and extent of punishment provided under the law
for the offence, the plea bargaining in his case and that he has not previously been
convicted by a Court in a case in which he had been charged with the same offence.
(3) After receiving the application under sub-section (1), the Court shall issue notice to the
Public Prosecutor or the complainant of the case, as the case may be, and to the accused to
appear on the date fixed for the case.
(4) When the Public Prosecutor or the complainant of the case, as the case may be, and the
accused appear on the date fixed under sub-section (3), the Court shall examine the
accused in camera, where the other party in the case shall not be present, to satisfy itself
that the accused has filed the application voluntarily and where--
(a) the Court is satisfied that the application has been filed by the accused voluntarily, it shall
provide time to the Public Prosecutor or the complainant of the case, as the case may be,
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and the accused to work out a mutually satisfactory disposition of the case which may
include giving to the victim by the accused the compensation and other expenses during the
case and thereafter fix the date for further hearing of the case;
(b) the Court finds that the application has been filed involuntarily by the accused or he has
previously been convicted by a Court in a case in which he had been charged with the same
offence, it shall proceed further in accordance with the provisions of this Code from the stage
such application has been filed under sub-section (1).
265C. Guidelines for mutually satisfactory disposition.--In working out a mutually
satisfactory disposition under clause (a) of sub-section (4) of section 265B, the Court shall
follow the following procedure, namely:
(a) in a case instituted on a police report, the Court shall issue notice to the Public
Prosecutor, the police officer who has investigated the case, the accused and the victim of
the case to participate in the meeting to work out a satisfactory disposition of the case:
Provided that throughout such process of working out a satisfactory disposition of the case, it
shall be the duty of the Court to ensure that the entire process is completed voluntarily by
the parties participating in the meeting:
Provided further that the accused may, if he so desires, participate in such meeting with his
pleader, if any, engaged in the case;
(b) in a case instituted otherwise than on police report, the Court shall issue notice to the
accused and the victim of the case to participate in a meeting to work out a satisfactory
disposition of the case:
Provided that it shall be the duty of the Court to ensure, throughout such process of working
out a satisfactory disposition of the case, that it is completed voluntarily by the parties
participating in the meeting:
Provided further that if the victim of the case or the accused, as the case may be, so desires,
he may participate in such meeting with his pleader engaged in the case.
265D. Report of the mutually satisfactory disposition to be submitted before the
Court.--Where in a meeting under section 265C, a satisfactory disposition of the case has
been worked out, the Court shall prepare a report of such disposition which shall be signed
by the presiding officer of the Court and all other persons who participated in the meeting
and if no such disposition has been worked out, the Court shall record such observation and
proceed further in accordance with the provisions of this Code from the stage the application
under sub-section (1) of section 265B has been filed in such case.
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265E. Disposal of the case.--Where a satisfactory disposition of the case has been worked
out under section 265D, the Court shall dispose of the case in the following manner, namely:
(a) the Court shall award the compensation to the victim in accordance with the disposition
under section 265D and hear the parties on the quantum of the punishment, releasing of the
accused on probation of good conduct or after admonition under section 360 or for dealing
with the accused under the provisions of the Probation of Offenders Act, 1958(20 of 1958) or
any other law for the time being in force and follow the procedure specified in the succeeding
clauses for imposing the punishment on the accused;
(b) after hearing the parties under clause (a), if the Court is of the view that section 360 or
the provisions of the Probation of Offenders Act, 1958(20 of 1958) or any other law for the
time being in force are attracted in the case of the accused, it may release the accused on
probation or provide the benefit of any such law, as the case may be;
(c) after hearing the parties under clause (b), if the Court finds that minimum punishment has
been provided under the law for the offence committed by the accused, it may sentence the
accused to half of such minimum punishment;
(d) in case after hearing the parties under clause (b), the Court finds that the offence
committed by the accused is not covered under clause (b) or clause (c), then, it may
sentence the accused to one-fourth of the punishment provided or extendable, as the case
may be, for such offence.
265F. Judgment of the Court.--The Court shall deliver its judgment in terms of section
265E in the open Court and the same shall be signed by the presiding officer of the Court.
265G. Finality of the judgment.--The judgment delivered by the Court under section 265G
shall be final and no appeal (except the special leave petition under article 136 and writ
petition under articles 226 and 227 of the Constitution) shall lie in any Court against such
judgment.
265H. Power of the Court in plea bargaining.--A Court shall have, for the purposes of
discharging its functions under this Chapter, all the powers vested in respect of bail, trial of
offences and other matters relating to the disposal of a cast in such Court under this Code.
265-I. Period of detention undergone by the accused to be set off against the sentence
of imprisonment.--The provisions of section 428 shall apply, for setting off the period of
detention undergone by the accused against the sentence of imprisonment imposed under
this Chapter, in the same manner as they apply in respect of the imprisonment under other
provisions of this Code.
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265K. Statements of accused not to be used.--Notwithstanding anything contained in any
law for the time being in force, the statements or facts stated by an accused in an application
for plea bargaining filed under section 265B shall not be used for any other purpose except
for the purpose of this Chapter.
265L. Non-application of the Chapter.--Nothing in this Chapter shall apply to any juvenile
or child as defined in clause (k) of section 2 of the Juvenile Justice (Care and Protection of
Children) Act, 2000(56 of 2000).".
The Supreme Court and the High Court in many cases awarded compensation on petitions
through Article 32 and 226.
B) Selected Supreme Court Judgments
I. PRISONERS’ RIGHTS
1) Sube Singh v. State of Haryana and Ors., AIR 2006 SC 1117. (Preventive
measures against custodial torture and factors for awarding compensation
under public law)
This is a case of custodial violence where the court stressed on the preventive measures. It
held:
“Custodial violence requires to be tackled from two ends, that is, by taking measures that are
remedial and preventive. Award of compensation is one of the remedial measures after the
event. Effort should be made to remove the very causes, which lead to custodial violence, so
as to prevent such occurances. Following steps, if taken, may prove to be effective
preventive measures:
a. Police training should be re-oriented, to bring in a change in the mindset and attitude of
the Police personnel in regard to investigations, so that they will recognize and respect
human rights, and adopt thorough and scientific investigation methods.
b. The functioning of lower level Police Officers should be continuously monitored and
supervised by their superiors to prevent custodial violence and adherence to lawful
standard methods of investigation.
c. Compliance with the eleven requirements enumerated in D.K. Basu v State of West
Bengal, AIR 1997 SC 610 should be ensured in all cases of arrest and detention.
d. Simple and fool-proof procedures should be introduced for prompt registration of first
information reports relating to all crimes.
e. Computerization, video-recording, and modern methods of records maintenance should
be introduced to avoid manipulations, insertions, substitutions and ante-dating in regard
to FIRs, Mahazars, inquest proceedings, Port-mortem Reports and Statements of
witnesses etc. and to bring in transparency in action.
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f. An independent investigating agency (preferably the respective Human Rights
Commissions or CBI) may be entrusted with adequate power, to investigate complaints
of custodial violence against Police personnel and take stern and speedy action followed
by prosecution, wherever necessary.
The endeavor should be to achieve a balanced level of functioning, where police respect
human rights, adhere to law, and take confidence building measures (CBMs), and at the
same time, firmly deal with organized crime, terrorism, white-collared crime, deteriorating law
and order situation etc.”
However, the Court stepped cautiously to award compensation under public law in cases of
custodial violence. In the words of the Court:
“Cases where violation of Article 21 involving custodial death or torture is established or is
incontrovertible stand on a different footing when compared to cases where such violation is
doubtful or not established. Where there is no independent evidence of custodial torture and
where there is neither medical evidence about any injury or disability, resulting from
custodial torture, nor any mark/scar, it may not be prudent to accept claims of human right
violation, by persons having criminal records in a routine manner for awarding
compensation. That may open the floodgates for false claims, either to mulct money from the
State or as to prevent or thwart further investigation. Courts should, therefore, while jealously
protecting the fundamental rights of those who are illegally detained or subjected to custodial
violence, should also stand guard against false, motivated and frivolous claims in the
interests of the society and to enable Police to discharge their duties fearlessly and
effectively. While custodial torture is not infrequent, it should be borne in mind that every
arrest and detention does not lead to custodial torture.
In cases where custodial death or custodial torture or other violation of the rights guaranteed
under Article 21 is established, courts may award compensation in a proceeding under
Article 32 or 226. However, before awarding compensation, the Court will have to pose to
itself the following questions: (a) Whether the violation of Article 21 is patent and
incontrovertible, (b) whether the violation is gross and of a magnitude to shock the
conscience of the court, (c) whether the custodial torture alleged has resulted in death or
whether custodial torture is supported by medical report or visible marks or scars or
disability. Where there is no evidence of custodial torture of a person except his own
statement, and where such allegation is not supported by any medical report or other
corroboration evidence, or where there are clear indications that the allegations are false or
exaggerated fully or in part, courts may not award compensation as a public law remedy
under Article 32 or 226, but relegate the aggrieved party to the traditional remedies by way
of appropriate civil/criminal action.
We should not, however, be understood as holding that harassment and custodial violence
is not serious or worthy of consideration, where there is no medical report or visible marks or
independent evidence. We are conscious of the fact that harassment or custodial violence
cannot always be supported by a medical report or independent evidence or proved by
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marks or scars. Every illegal detention irrespective of its duration, and every custodial
violence, irrespective of its degree or magnitude, is outright condemnable and per se
actionable. Remedy for such violation is available in civil law and criminal law. The public law
remedy is additionally available where the conditions mentioned in the earlier para are
satisfied.”
2) State of M.P. v. Shyamsunder Trivedi and Ors., (1995) 4 SCC 262. (Softening
the degree of proof required in criminal prosecution relating to custodial
torture)
This is a case of custodial death in an attempt to extort confession. The court held that
injury/death to person in police custody allows Court to presume injury/death being caused
by police and onus is on them to prove contrary the Court held that circumstantial evidences
if sufficiently correlated and reliable can lead to conviction in absence of direct evidence
especially when presumption of having caused injury/death is not rebutted. Even the Court
has softened the degree of proof required in criminal prosecution relating to such matters.
“….the ground realities that rarely in cases of police torture or custodial death, direct ocular
evidence of the complicity of the police personnel would be available….Generally speaking,
it would be police officials alone who can only explain the circumstances in which a person in
their custody had died….Bound as they are by the ties of brotherhood. It is not unknown that
the police personnel prefer to remain silent and more often then not even pervert the truth to
save their colleagues, and the present case is an apt illustration, as to how one after the
other police witnesses feigned ignorance about the whole matter….The exaggerated
adherence to and insistence upon the establishment of proof beyond every reasonable
doubt, by the prosecution, ignoring the ground realities, the fact situations and the peculiar
circumstances of a given case, as in the present case, often results in miscarriage of justice
and makes the justice delivery system a suspect. In the ultimate analysis the society suffers
and a criminal gets encouraged. Tortures in police custody, which of late are on the
increase, receive encouragement by this type of an unrealistic approach of the Courts
because it reinforces the belief in the mind of the police that no harm would come to them, if
an odd prisoner dies in the lock-up, because there would hardly be any evidence available to
the prosecution to directly implicate them with the torture. The Courts, must not loose sight
of the fact that death in police custody is perhaps one of the worst kind of crime in a civilised
society, governed by the rule of law and poses a serious threat to an orderly civilised society.
Torture in custody flouts the basic rights of the citizens recognised by the Indian Constitution
and is an affront to human dignity. Police excesses and the maltreatment of
detainees/undertrial prisoners or suspects tarnishes the image of any civilised nation and
encourages the men in 'Khaki' to consider themselves to be above the law and sometimes
even to become law unto themselves. Unless stern measures are taken to check the
malady, the foundations of the criminal justice delivery system would be shaken and the
civilization itself would risk the consequence of heading towards perishing. The courts must,
therefore, deal with such cases in a realistic manner and with the sensitivity which they
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deserve otherwise the common man may loose faith in the judiciary itself, which will be a sad
day.”
It referred to the reports of the National Police Commission and the Law Commission and
observed:
“In its 4th Report of June, 1980, The National Police Commission noticed the prevalence of
custodial toruture etc. and observed the nothing is so dehumanising as the conduct of police
in practising torture of any kind on a person in their custody. The commission noticed with
regret that the police image in the estimation of the public has badly suffered on account of
the prevalence of this practice in varying degrees over the past several years and noted with
concern the inclination of even some of the supervisory ranks in the police hierarchy to
countenance this practice in a bid to achieve quick results by short-cut methods. Though
Sections 330 and 331 of the Indian Penal Code make punishable those persons who cause
hurt for the purpose of extorting the confession, by making the offence punishable with
sentence upto 10 years of imprisonment, but the convictions, as experience shows us, have
been very few because the atrocities within the precincts of the police station are often left
without any ocular or other direct evidence to prove who the offenders are. Disturbed by this
situation, the Law Commission in its 113th Report recommended amendments to the Indian
Evidence Act so as to provide that in the prosecution of a police officer for an alleged offence
of having caused bodily injuries to a person while in police custody, if there is evidence that
the injury was caused during the period when the person was in the police custody, the
Court may presume that the injury was caused by the police officer having the custody of
that person during that period unless, the police officer proves to the contrary. The onus to
prove the contrary must be discharged by the concerned police official. The
recommendation, however, we notice with concern, appears to have gone un-noticed and
the crime of custodial torture etc. flourishes unabated. Keeping in view the de-humanising
aspect of the crime, the flagrant violation of the fundamental rights of the victim of the crime
and the growing rise in the crimes of this type, where only a few come to light and others
don't, we hope that the Government and Legislature would give serious thought to the
recommendation of the Law Commission and bring about appropriate changes in the law not
only to curb the custodial crime but also to see that the custodial crime does not go
unpunished. The Courts are also required to have a change in their outlook and attitude,
particularly in cases involving custodial crimes and they should exhibit more sensitivity and
adopt a realistic rather than a narrow technical approach, while dealing with the cases of
custodial crime so that as far as possible within their powers, the guilty should not escape so
that the victim of the crime has the satisfaction that ultimately the Majesty of Law has
prevailed.”
3) Arvinder Singh Bagga v. State of Uttar Pradesh, AIR 1995 SC 117. (Defining
torture)
This case was of detention of a married woman in custody who was not accused on pretext
of her being victim of abduction and rape which never was to her knowledge but was
tortured by threats of violence to her and to her husband and family. She was successfully
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threatened and commanded to implicate her husband and his family in a case of abduction
and forcible marriage thereafter by the police officials. In defining torture the Court held:
“Torture is not merely physical, there may be mental torture and psychological torture
calculated to create fright and submission to the demands or commands. When the threats
proceed from a person in Authority and that too by a police officer the mental torture caused
by it is even more grave”
4) Inder Singh v. State of Punjab and Others, AIR 1995 SC 312. (Laying down
Guidelines for an independent inquiry in a case of illegal detention and
disappearance)
It is a habeas corpus petition by petitioner to secure the release of 7 members of his
family who were taken to the custody by a police party under the command of Baldev
Singh, D.S.P., who is the third respondent to the petition from their residence on 29th
October, 1991. The petition states that efforts to obtain the release of the said 7
persons having failed, the habeas corpus petition had been filed on 27th July, 1994.
Mr. K.T.S. Tulsi, learned Additional Solicitor General, appearing on behalf of the
State of Punjab and K.P.S. Gill, Director General of Police, Punjab, the first and
second respondents to the petition, submitted that third respondent had been found
guilty through investigation was absconding. It was also amply clear that the said 7
persons were not wanted by the Punjab Police in connection with any criminal
offence or inquiry.
The Police made possible inquiries about the whereabouts of the abducted persons
but proved to be futile. However, the Court frowned on the lackadaisical approach
and unexplained delay of the police process and pressed for an independent high
level inquiry into the matter.
Hence the Court held:
“For the reasons that we have, already set out. We are unwilling to entrust the
investigation of the abduction and presumable liquidation of the said 7 persons to the
Punjab Police. We are satisfied that an independent investigation at a very high level
is called for. The investigation shall cover: (a) the circumstances of the abduction of
said 7 persons; (b) their present whereabouts or the date and circumstances of their
liquidation; (c) how it was that the inquiry into the complaint was delayed from 25th
January, 1992, when it was received by the office of the 2nd respondent, till 23rd
March, 1994, when the case was registered; (d) whether it is in conformity with good
police administration that a complaint of abduction of 7 citizens by a high ranking
police officer should not be required to be brought to the attention of the officer in
command of the police force even after the allegations made in the complaint had
been found to be correct on inquiry by a specially designated officer; (e) whether
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there has been an attempt to cover-up the misdoings of police officers and
policemen involved in the abduction of the said 7 persons and their subsequent
incarceration or liquidation; and (f) if so, who was involved therein.
The inquiry shall be conducted personally by the Director of the Central Bureau of
Investigation and he shall made a report to us within 4 weeks from today. For the
purposes of recording statements and such other purposes, the Director shall be free
to utilise the services of officers of the rank of Deputy Director, CBI, and above. The
report shall be submitted in a sealed envelope to the Registrar-General of the
Supreme Court and it shall be opened by us.”
5) Smt. Nilabati Behera @ Lalita Behera v. State of Orissa and Ors., AIR 1993
SC 1960. (Compensation under public law for custodial death)
In this case, the deceased was arrested by the police, handcuffed and kept in a police
custody. The next day, his dead-body was found on a railway track.
While paying compensation to the mother of the victim, the Court held:
“... Convicts, prisoners or under-trials are not denuded of their fundamental rights under
Article 21 and it is only such restrictions, as are permitted by law, which can be imposed on
the enjoyment of the fundamental rights by such persons. It is an obligation of the State to
ensure that there is no infringement of the indefeasible rights of a citizen to life, except in
accordance with law, while the citizen is in its custody.
The public law proceedings serve a different purpose than the private law proceedings. The
relief of monetary compensation, as exemplary damages, in proceedings under Article 32 by
the Supreme Court or under Article 226 by the High Courts, for established infringement of
the indefeasible right guaranteed under Article 21 is a remedy available in public law and is
based on the strict liability for contravention of the guaranteed basic and indefeasible rights
of the citizen. The purpose of public law is not only to civilize public power but also to assure
the citizen that they live under a legal system which aims to protect their interests and
preserve their rights. Therefore, when the court moulds the relief by granting 'compensation'
in proceedings under Article 32 or 226 seeking enforcement or protection of fundamental
rights, it does so under the public law by way of penalizing the wrongdoer and fixing the
liability for the public wrong on the State which has failed in its public duty to protect the
fundamental rights of the citizen. The payment of compensation in such cases is not to be
understood, as it is generally understood in a civil action for damages under the private law
but in the broader sense of providing relief by an order of making 'monetary amends' under
the public law for the wrong done due to breach of public duty, of not protecting the
fundamental rights of the citizen. The compensation is in the nature of 'exemplary damages'
awarded against the wrongdoer for the breach of its public law duty and is independent of
the rights available to the aggrieved party to claim compensation under the private law in an
action based on tort, through a suit instituted in a court of competent jurisdiction or/and
prosecute the offender under the penal law.”
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6) Vikram Deo Singh Tomar v. State of Bihar, AIR 1988 SC 1782. (Against
inhuman condition of living in the care homes)
In this case the Supreme Court took note of the pitiable condition prevailing in the ‘Care
home’ managed by the Welfare Department of the State Government of Bihar under the
administrative control of the Deputy Director, Welfare, Patna.
Disturbed and anxious by the inhabitable condition of the inmates, the Court held:
“India is a welfare State governed by a Constitution which holds the pride of place in the
hearts of its citizens. It lays special emphasis on the protection and well-being of the weaker
sections of society and seeks to improve their economic and social status on the basis of
constitutional guarantees spelled out in its provisions. It shows a particular regard for women
and children, and notwithstanding the pervasive ethos of the doctrine of equality it
contemplates special provision being made for them by law. This is only to be expected
when an enlightened constitutional system takes charge of the political and socio-economic
governance of a society, which has for centuries witnessed the relegation of women to a
place far below their due. We live in an age when this Court has demonstrated, while
interpreting Article 21 of the Constitution, that every person is entitled to a quality of life
consistent with his human personality. The right to live with human dignity is the fundamental
right of every Indian citizen. And, so, in the discharge of its responsibilities to the people, the
State recognises the need for maintaining establishments for the care of those unfortunates,
both women and children, who are the castaways of an imperfect social order and for whom,
therefore, of necessary provision must be made for their protection and welfare. Both
common humanity and considerations of law and order require the State to do so. To abide
by the constitutional standards recognised by well-accepted principle, it is incumbent upon
the State when assigning women and children to these establishments, euphemistically
described as ‘Care Home’, to provide at least the minimum conditions ensuring human
dignity.”
7) Dr. Upendra Baxi and Ors. (II) v. State of U.P. and Ors, AIR 1987 SC 191.
(Right of the female inmates in Protective homes to live with dignity)
This case came up because of a writ petition filed alleging the conditions in which girls were
living in the Government Protective Home at Agra were abominable and they were being
denied their right to live with basic human dignity by the State of Uttar Pradesh which was
running the Protective Home.
The Court gave detailed directions to the State Government seeking improvement of the
living condition of the female inmates.
8) Seela Barse v. State of Maharastra, AIR 1983 SC 378. (Protection of women
prisoners)
This was a case of custodial violence concerning women prisoners and detainees in State of
Maharashtra. The Court reiterated right to legal aid to under trial and convicted persons and
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laid down certain direction issued by Supreme Court for providing fast and efficient legal
assistance to prisoners in jail and to provide protection to women prisoners in lock-ups.
Hence, the court proposed to give the following directions:
i. We would direct that four or five police lock ups should be selected in reasonably good
localities where only female suspects should be kept and they should be guarded by
female constables. Female suspects should not be kept in police lock up in which male
suspects are detained. The State of Maharashtra has intimated to us that there are
already three cells where female suspects are kept, and are guarded by female
constables and has assured the Court that two more cells with similar arrangements will
be provided exclusively for female suspects.
ii. We would further direct that interrogation of females should be carried out only in the
presence of female police officers/constables.
iii. Whenever a person is arrested by the police without warrant, he must be immediately
informed of the grounds of his arrest and in case of every arrest it must immediately be
made known to the arrested person that he is entitled to apply for bail. The Maharashtra
State Board of Legal Aid & Advice will forthwith get a pamphlet prepared setting out the
legal rights of an arrested person and the State of Maharashtra will bring oat sufficient
number of printed copies of the pamphlet in Marathi which is the lauguage of the people
in the State of Maharashtra as also in Hindi and English and printed copies of the
pamphlet in all the three languages shall be affixed in each cell in every police lock up
and shall be read out to the arrested person in any of the three languages which he
understands as soon as he is brought to the police station.
iv. We would also direct that whenever a person is arrested by the police and taken to the
police lock up, the police will immediately give an intimation of the fact of such arrest to
the nearest Legal Aid Committee and such Legal Aid Committee will take immediate
steps for the purpose of providing legal assistance to the arrested person at State cost
provided he is wrilling to accept such legal assistance. The State Government will
provide necessary funds to the concerned Legal Aid Committee for carrying out this
direction.
v. We would direct that in the city of Bombay, a City Sessions Judge, to be nominated by
the principal Juge of the City Civil Court, preferably a lady Judge, if there is one, shall
make surprise visits to police lock ups in the city periodically with a view to providing the
arrested persons an opportunity to air their grievances and ascertaining what are the
conditions in the police lock ups and whether the requisite facilities are being provided
and the provisions of law are being observed and the directions given by us are being
carried out. If it is found as a result of inspection that there are any lapses on the part of
the police authorities, the City Sessions Judge shall bring them to the notice of the
Commissioner of Police and if necessary to the notice of the Home Department and if
even this approach fails, the City Sessions Judge may draw the attention of the Chief
Justice of the High Court of Mahrashtra to such lapses. This direction in regard to police
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lock ups at the districts head quarters, shall be carried out by the Sessions Judge of the
district concerned.
vi. We would direct that as soon as a person is arrested, the police must immediately obtain
from him the name of any relative or friend whom he would like to be informed about his
arrest and the police should get in touch with such relative or friend and inform him about
the arrest; and lastly.
We would direct that the magistrate before whom an arrested person is produced shall
enquire from the arrested person whether he has any complaint of torture or mal-treatment
in police custody and inform him that he has right under Section 54 of the Code of Criminal
Procedure 1973 to be medically examined. We are aware that Section 54 of the Code of
Criminal Procedure 1973 undoubtedly provides for examination of an arrested person by a
medical practitioner at the request of the arrested person and it is a right conferred on the
arrested person. But very often the arrested person is not aware of this right and on account
of, his ignorance, he is unable to exercise this right even though he may have been tortured
or malterated by the police in police lock up. It is for this reason that we are giving a specific
direction requiring the magistrate to inform the arrested person about this right of medical
examination in case he has any complaint of torture or mal-treatment in police custody.”
9) Rudul Sah v. State of Bihar, AIR 1983 SC 1086. (Illegal detention and
payment of compensation)
In this case the petitioner approached the Supreme Court under Article 32 of the Constitution
alleging that though he was acquitted by the Sessions Court on 3.6.1968, he was released
from jail only on 6.10.1982, after 14 years, and sought compensation for his illegal detention.
The question arose as to whether under Article 32 Supreme Court can pass Order of
compensation for infringement of fundamental right. This Court answered the question thus
while awarding compensation:
Article 21 which guarantees the right to life and liberty will be denuded of its significant
content if the power of this Court were limited to passing orders of release from illegal
detention. One of the telling ways in which the violation of that right can reasonably be
prevented and due compliance with the mandate of Article 21 secured, is to mulct its
violators in the payment of monetary compensation. Administrative sclerosis leading to
flagrant infringements of fundamental rights cannot be corrected by any other method open
to the judiciary to adopt. The right to compensation is some palliative for the unlawful acts of
instrumentalities which act in the name of public interest and which present for their
protection the powers of the State as a shield. If civilisation is not to perish in this country as
it has perished in some others too well-known to suffer mention, it is necessary to educate
ourselves into accepting that, respect for the rights of individuals is the true bastion of
democracy. Therefore, the State must repair the damage done by its officers to the
petitioner's rights. It may have recourse against those officers.
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However, the Court made it clear that petitioner without prejudice to interim compensation
awarded may bring suit to recover appropriate damages from the state and its erring
officials.
10) Khatri (IV) v. State of Bihar, AIR 1981 SC 1068. (Payment of compensation)
In the said case the questions arose were iner alia,
If an officer of the State acting in his official capacity threatens to deprive a person of his life
or personal liberty without the authority of law, can such person not approach the court for
injuncting the State from acting through such officer in violation of his fundamental right
under Article 21?
Can the State urge in defence in such a case that it is not infringing the fundamental right of
the petitioner under Article 21, because the officer who is threatening to do so is acting
outside the law and therefore beyond the scope of his authority and hence the State is not
responsible for his action ?
Answering the said questions, it was held that when a court trying the writ petition proceeds
to inquire into the violation of any right to life or personal liberty, while in police custody, it
does so, not for the purpose of adjudicating upon the guilt of any particular officer with a view
to punishing him but for the purpose of deciding whether the fundamental right of the
petitioners under Article 21 has been violated and the State is liable to pay compensation to
them for such violation. This Court clarified that the nature and object of the inquiry is
altogether different from that in a criminal case and any decision arrived at in the writ petition
on this issue cannot have any relevance much less any binding effect, in any criminal
proceeding which may be taken against a particular police officer. This Court further clarified
that in a given case, if the investigation is still proceeding, the Court may even defer the
inquiry before it until the investigation is completed or if the Court considered it necessary in
the interests of Justice, it may postpone its inquiry until after the prosecution was terminated,
but that is a matter entirely for the exercise of the discretion of the Court and there is no bar
precluding the Court from proceeding with the inquiry before it, even if the investigation or
prosecution is pending.
11) Francis Coralie Mullin v. Union Territory of Delhi, AIR 1981 SC 746. (Right
against torture within the prison walls)
In this case the detention order of prison authority prevented accused form interviews with
family and legal adviser. The petitioner challenged restrictions imposed on interviews by
prison authorities. The restrictions were found to be violative of Articles 19 and 21
In doing so, the Court held:
“…the question which arises is whether the right to life is limited only to protection of limb or
faculty or does it go further and embrace something more. We think that the right to life
includes the right to live with human dignity and all that goes along with it, namely, the bare
necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading,
writing and expressing one-self in diverse forms, freely moving about and mixing and
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commingling with fellow human beings. Of course, the magnitude and content of the
components of this right would depend upon the extent of the economic development of the
country, but it must, in any view of the matter, include the right to the basic necessities of life
and also the right to carry on such functions and activities as constitute the bare minimum
expression of the human-self. Every act which offends against or impairs human dignity
would constitute deprivation pro tanto of this right to live and it would have to be in
accordance with reasonable, fair and just procedure established by law which stands the test
of other fundamental rights. Now obviously, any form of torture or cruel, inhuman or
degrading treatment would be offensive to human dignity and constitute an inroad into this
right to live and it would, on this view, be prohibited by Article 21 unless it is in accordance
with procedure prescribed by law, but no law which authorises and no procedure which
leads to such torture or cruel, inhuman or degrading treatment can ever stand the test of
reasonableness and non-arbitrariness: it would plainly be unconstitutional and void as being
violative of Articles 14 and 21. It would thus be seen that there is implicit in Article 21 the
right to protection against torture or cruel, inhuman or degrading treatment which is
enunciated in Article 5 of the Universal Declaration of Human Rights and guaranteed by
Article 7 of the International Covenant on Civil and Political Rights. This right to live which is
comprehended within the broad connotation of the right to life can concededly be abridged
according to procedure established by law and therefore when a person is lawfully
imprisoned, this right to live is bound to suffer attenuation to the extent to which it is
incapable of enjoyment by reason of incarceration. The prisoner or detenu obviously cannot
move about freely by going outside the prison walls nor can he socialise at his free will with
persons outside the jail. But, as part of the right to live with human dignity and therefore as a
necessary component of the right to life, he would be entitled to have interviews with the
members of his family and friends and no prison regulation or procedure laid down by prison
regulation regulating the right to have interviews with the members of the family and friends
can be upheld as constitutionally valid under Articles 14 and 21, unless it is reason able, fair
and just.
12) Raghubir Singh v. State of Haryana, AIR 1980 SC 1087 (Against Police
Torture)
It’s a case with regard to theft. During investigation, the petitioner tortured the suspects and
one of them succumbed to injuries. The deceased became unconscious for being tortured
on both soles of feet and false explanation of suicidal hanging was set up by petitioner.
The Court observed:
“We are deeply disturbed by the diabolical recurrence of police torture resulting in a terrible
scarce in the minds of common citizens that their lives and liberty are under a new peril
when the guardians of the law gore human rights to death. The vulnerability of human rights
assumes a traumatic, torturesome poignancy when violent violation is perpetrated by the
police arm of the State whose function is to protect the citizen and not to commit gruesome
offences against them as has happened in this case. Police lock-up if reports in newspapers
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have a streak of credence, are becoming more and more awesome cells. This development
is disastrous to our human rights awareness and humanist constitutional order.
The State, at the highest administrative and political levels, we hope, will organise special
strategies to prevent and punish brutality by police methodology. Otherwise, the credibility of
the rule of law in our Republic vis-a-vis the people of the country will deteriorate.
We conclude with the disconcerting note sounded by Abraham Lincoln :
If you once forfeit the confidence of your fellow citizens you can never regain their respect
and esteem. It is true that you can fool all the people some of the time, and some of the
people all the time, but you cannot fool all the people all the time.
These observations have become necessary to impress upon the State police echelons the
urgency of stamping out the vice of 'third degree' from the investigative armoury of the
police.”
13) Sunil Batra (II) v Delhi Administration 1980 3 SCC 488. (Unrestricted use of
bar-fetters)
Under-trials shall be deemed to be in custody, but not undergoing punitive imprisonment. So
much so, they shall be accorded more relaxed conditions than convicts.
The court held:
3. “….Fetters, especially bar fetters, shall be shunned ns violative of human dignity, within
and without prisons. The indiscriminate resort to handcuffs when accused persons are
taken to and from court and the expedient of forcing irons on prison inmates are illegal
and shall be stopped forthwith save in a small category of cases dealt with next below.
Reckless ' handcuffing and chaining in public degrades, puts to shame finer sensibilities
and is a slur on our culture.
4. Where an undertrial has a credible tendency for violence and escape a humanely
graduated degree of 'iron' restraint is permissible if only if-other disciplinary alternatives
are unworkable. The burden of proof of the ground is on the custodian. And if he fails, he
will be liable in law.
5. The 'iron' regimen shall in no case go beyond the intervals, conditions and maxima laid
down for punitive 'irons'. They s hall be for short spells, light and never applied if sores
exist.
6. The discretion to impose 'irons' is subject to quasi-judicial over sight, even if purportedly
imposed for reasons of security.
7. A previous hearing, minimal may be, shall be afforded to the victims. In exceptional
cases, the hearing may be soon after. The rule in Gill's case and Maneka Gandhi's case
gives the guidelines.
8. The grounds for 'fetters' shall be given to the victim. And when the decision to fetter is
made, the reasons shall be recorded in the journal and in the history ticket of the
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prisoner in the State language. If he is a stranger to that language it shall be
communicated to him as far as possible, in his language. This applies to cases as much
of prison punishment as of 'safety' fetters.
9. Absent provision for independent review of preventive and punitive action, for discipline
or security, such action shall be invalid as arbitrary and unfair and unreasonable . The
prison officials will then be liable civilly and criminally for hurt to the person of the
prisoner. The State will urgently set up or strengthen the necessary infra- structure and
process in this behalf-it already exists in embryo in the Act.
10. Legal aid shall be given to prisoners to seek justice from prison authorities, and, if need
be, to challenge the decision in court-in cases where they are too poor to secure on their
own. If lawyer's services. are not given, the decisional process becomes unfair and
unreasonable, especially because the rule of law perishes for a disabled prisoner if
counsel is unapproachable and beyond purchase. By and large, prisoners are poor,
lacking legal literacy, under the trembling control of the jailor, at his mercy as it were, and
unable to meet relations or friends to take legal action. Where a remedy is all but dead
the right lives; only in print. Art. 39 A is relevant in the context. Art. 19 will be violated in
such a case as the process will be unreasonable. Art. 21 will be infringed since the
procedure is unfair and is arbitrary. In Maneka Gandhi the rule has been stated beyond
mistake.
11. No 'fetters' shall continue beyond day time as nocturnal fetters on locked-in detenus are
ordinarily uncalled for, viewed from considerations of safety.
12. The prolonged continuance of 'irons', as a punitive or preventive step, shall be subject to
previous approval by an external examiner like a Chief Judicial Magistrate or Sessions
Judge who shall briefly hear the victim and record reasons. They are ex-officio visitors of
most central prisons.
13. The Inspector General of Prisons shall, with quick despatch consider revision petitions
by fettered prisoners and direct the continuation or discontinuation of the irons. In the
absence of such prompt decision, the fetters shall be deemed to have been negatived
and shall A be removed.”
14) Sunil Batra(I) v. Delhi Administration and Ors. etc., AIR 1978 SC 1675.
(Against solitary confinement)
In this case the segregation by means of solitary confinement under of prisoner sentence of
death section 30 (2) of the Prisons Act 1 was challenged, though the Court upheld the
provision but held solitary confinement as violative of Article 14, 19, 20(2) and 21.
1 Section 30 of the Prisons Act reads as under :-
30. (1) Every prisoner under sentence of death shall, immediately on his arrival in the prison after sentence, be
searched by, or by order of, the Jailer and all articles shall be taken from him which the Jailer deems it
dangerous or inexpedient to leave in his possession.
(2) Every such prisoner shall be confined in a cell apart from all other prisoners, and shall be placed by day and
by night under the charge of a guard.
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The court held:
It may be conceded that solitary confinement has a degrading and dehumanising effect on
prisioners. Constant and unrelieved isolation of a prisoner is so unnatural that it may breed
insanity. Social isolation represents the most destructive abnormal environment. Results of
long solitary confinement are disastrous to the physical and mental health of those subjected
to it. It is abolished in U.K. but it is still retained in U.S.A.
If Sub-section (2) of Section 30 enables the prison authority to impose solitary confinement
on a prisoner under sentence of death not as a consequence of violation of prison discipline
but on the sole and solitary ground that the prisoner is a prisoner under sentence of death,
the provision contained in Sub-section (2) would offend Article 20 in the first place as also
Articles 14 and 19. If by imposing solitary confinement there is total deprivation of
comaraderie amongst coprisoners, co-mingling and talking and being talked to, it would
offend Article 21.
Incidentally it was also urged that the classification envisaged by Section 30 of prisoner
under sentence of death is irrational and it is not based upon any intelligible differentia which
would distinguish persons of one class from others left out and the basis of differentiation
has no nexus with the avowed policy and object of the Act. There is no warrant for an implicit
belief that every prisoner under sentence of death is necessarily violent or dangerous which
requires his segregation. Experience shows that they become morose and docile and are
inclined to spend their last few days on earth in communion with their Creator. It was
therefore, said that to proceed on the assumption that every prisoner under sentence of
death is necessarily of violent propensities and dangerous to the community of co-prisoners
is unwarranted and the classification on the basis of sentence does not provide any
intelligible differentia. The rationale underlying the provision is that the very nature of the
position and predicament of prisoner under sentence of death as construed by us, lead to a
certain situation and present problems peculiar to such persons and warrants their separate
classification and treatment as a measure of jail administration and prison discipline. It can
hardly be questioned that prisoners under sentence of death form a separate class and their
separate classification has to be recognised. In England a prisoner under sentence of death
is separately classified as would appear from para 1151, Vol. 30, Halsbury's Laws of
England, 3rd Edition. He is searched on reception and every article removed which the
governor thinks it dangerous or inexpedient to leave with him. He is confined in a separate
cell, kept apart from all other prisoners and is not required to work. Visits are allowed by
relatives, friends and legal advisers whom the prisoner wishes to see etc. It is true that there
is no warrant for the inference that a prisoner under sentence of death is necessarily of
violent propensities or dangerous to co-prisoners. Approaching the matter from that angle
we interpreted Sub-section (2) of Section 30 to mean that he is not to be completely
segregated except in extreme cases of necessity which must be specifically made out and
that too after he in the true sense of the expression becomes a prisoner under sentence of
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death. Classification according to sentence for the security purposes is certainly valid and,
therefore, Section 30(2) does not violate Article 14.
II. WOMEN’S RIGHTS
1) Dinesh @ Buddha v.State of Rajasthan, AIR 2006 SC 1267. (Prohibition of
mentioning names of rape victims in the Court Judgment)
In a case involving a rape of an eight year old girl, the Court, to protect the victim from social
ignominy, specifically ordered the courts to restrain themselves from mentioning the name of
the victim in their judgments. It observed that sexual violence apart from being a
dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female.
The Court while delivering judgment opined:
“The Courts are, therefore, expected to deal with cases of sexual crime against women with
utmost sensitivity. Such cases need to be dealt with sternly and severely. A socially
sensitized judge, in our opinion, is a better statutory armour in cases of crime against women
than long clauses of penal provisions, containing complex exceptions and provisos.”
Regarding the identity of the rape victim, the Court made an important observation:
“We do not propose to mention name of the victim. Section 228A of IPC makes disclosure of
identity of victim of certain offences punishable. Printing or publishing name of any matter
which may make known the identity of any person against whom an offence under
Sections376, 376A, 376B, 376C or 376D is alleged or found to have been committed can be
punished. True it is, the restriction, does not relate to printing or publication of judgment by
High Court or Supreme Court. But keeping in view the social object of preventing social
victimization or ostracism of the victim of a sexual offence for which Section 228A has been
enacted, it would be appropriate that in the judgments, be it of this Court, High Court or
lower Court, the name of the victim should not be indicated. We have chosen to describe her
as 'victim' in the judgment.”
2) Sakshi v. Union of India, AIR 2004 SC 3566. (Guidelines for dealing with
cases of sexual/child abuse)
The present case was a Public interest litigation filed by Sakshi, a woman organization to
widen the meaning of ‘rape’. The contention of petitioner organization that the existing trend
of respondent authorities to treat sexual violence, other than penile/vaginal petitioner as
lesser offences falling under either section 377 or 354 IPC and not as a sexual violence
under Section 375/376 IPC was without any justification and was contrary to contemporary
understanding of sexual abuse. Hence, it denies majority of women and children access to
adequate redress in violation of Article 14 and 21. However, the Supreme Court rejected the
contention.
In the petition, the other aspect which was highlighted and needed consideration relates to
providing protection to a victim of sexual abuse at the time of recording his statement in
court.
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Concerned by the monstrous growth of the incidents of child sexual abuse, the Court held:
“The whole inquiry before a Court being to elicit the truth, it is absolutely necessary that the
victim or the witnesses are able to depose about the entire incident in a free atmosphere
without any embarrassment. Section 273 Cr.P.C. merely requires the evidence to be taken
in the presence of the accused. The Section, however, does not say that the evidence
should be recorded in such a manner that the accused should have full view of the victim or
the witnesses.”
The Court cautioned that:
“The mere sight of the accused may induce an element of extreme fear in the mind of the
victim or the witnesses or can put them in a state of shock. In such a situation he or she may
not be able to give full details of the incident which may result in miscarriage of justice.
Therefore, a screen or some such arrangement can be made where the victim or witnesses
do not have to undergo the trauma of seeing the body or the face of the accused. Often the
questions put in cross-examination are purposely designed to embarrass or confuse the
victims of rape and child abuse. The object is that out of the feeling of shame or
embarrassment, the victim may not speak out or give details of certain acts committed by the
accused. It will, therefore, be better if the questions to be put by the accused in crossexamination
are given in writing to the Presiding Officer of the Court, who may put the same
to the victim or witnesses in a language which is not embarrassing. There can hardly be any
objection to the other suggestion given by the petitioner that whenever a child or victim of
rape is required to give testimony, sufficient breaks should be given as and when required.”
The Court referred to the case of State of Punjab v. Gurmit Singh, AIR 1996 SC 1393, in
which it gave a direction to hold the trial of rape cases in camera. It was also pointed out that
such a trial in camera would enable the victim of crime to be a little comfortable and answer
the questions with greater ease and thereby improve the quality of evidence of a prosecutrix
because there she would not be so hesitant or bashful to depose frankly as she may be in
an open court, under the gaze of the public. It was further directed that as far as possible
trial of such cases may be conducted by lady Judges wherever available so that the
prosecutrix can make a statement with greater ease and assist the court to properly
discharge their duties, without allowing the truth to be sacrificed at the altar of rigid
technicalities.
Finally the Court laid the following guidelines for dealing with cases of sexual/child
abuse as under:
(1) The provisions of Sub-section (2) of Section 327 Cr.P.C. shall, in addition to the offences
mentioned in the sub-section, would also apply in inquiry or trial of offences under Sections
354 and 377 IPC.
(2) In holding trial of child sex abuse or rape:
(i) a screen or some such arrangements may be made where the victim or witnesses (who
may be equally vulnerable like the victim) do not see the body or face of the accused;
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(ii) the questions put in cross-examination on behalf of the accused, in so far as they relate
directly to the incident should be given in writing to the Presiding Officer of the Court who
may put them to the victim or witnesses in a language which is clear and is not
embarrassing;
(iii) the victim of child abuse or rape, while giving testimony in court, should be allowed
sufficient breaks as and when required.
These directions are in addition to those given in State of Punjab v. Gurmit Singh.”
3) The Chairman, Railway Board & Ors. v. Mrs. Chandrima Das & Ors., AIR
2000 SC 988. (Offence of rape is violation of fundamental right to life under
Article 21 and foreign citizens are entitled to protection)
Mrs. Chandrima Das, a practising advocate of the Calcutta High Court, filed a petition under
Article 226 of the Constitution against the Chairman, Railway Board and several other
government officials claiming compensation for the victim, Smt. Hanuffa Khatoon, a
Bangladeshi national who was gang-raped by many including employees of the Railways in
a room at Yatri Niwas at Howrah Station of the Eastern Railway. She also claimed several
other reliefs including a direction to the respondents to eradicate anti-social and criminal
activities at Howrah Railway Station.
The High Court had awarded a sum of Rs, 10 lacs as compensation for Smt. Hanuffa
Khatoon as the High Court was of the opinion that the rape was committed at the building
(Rail Yatri Niwas) belonging to the Raiways and was perpetrated by the Railway employees.
In the appeal before the Supreme Court, issues contended were inter alia
a) that the Railways would not be liable to pay compensation to Smt. Hanuffa Khatoon who
was a foreigner and was not an Indian national.
b) that commission of the offence by the person concerned would not make the Railway or
the Union of India liable to pay compensation to the victim of the offence. It is contended that
since it was the individual act of those persons, they alone would be prosecuted and on
being found guilty would be punished and may also be liable to pay fine or compensation,
but having regard to the facts of this case, the Railways, or, for that matter, the Union of
India would not even be vicariously liable.
c) that for claiming damages for the offence perpetrated on Smt. Hanuffa Khatoon, the
remedy lay in the domain of Private Law and not under Public Law and, therefore, no
compensation could have been legally awarded by the High Court in a proceeding under
Article 226 of the Constitution.
The Court dealt with all these issues meticulously. So far the first one is concerned, it
referred to several provisions of UDHR, UN Charter, Declaration on the Elimination of
Violence against Women and the observed:
“The International Covenants and Declarations as adopted by the United Nations have to be
respected by all signatory States and the meaning given to the above words in those
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Declarations and Covenants have to be such as would help in effective implementation of
those Rights. The applicability of the Universal Declaration of Human Rights and principles
thereof may have to be read, if need be, into the domestic jurisprudence.
……The word "LIFE" has also been used prominently in the Universal Declaration of Human
Rights, 1948. [See Article 3 quoted above]. The Fundamental Rights under the Constitution
are almost in consonance with the Rights contained in the Universal Declaration of Human
Rights as also the Declaration and the Covenants of Civil and Political Rights and the
Covenants of Economic, Social and Cultural Rights, to which India is a party having ratified
them. That being so, since "LIFE" is also recognised as a basic human right in the Universal
Declaration of Human Rights, 1948, it has to have the same meaning and interpretation as
has been placed on that word by this Court in its various decisions relating to Article 21 of
the Constitution. The meaning of the word "life" cannot be narrowed down. According to the
tenor of the language used in Article 21, it will be available not only to every citizen of this
Country, but also to a "person" who may not be a citizen of the country…..Thus, they also
have the right to live, so long as they are here, with human dignity, just as the State is under
an obligation to protect the life of every citizen in this country, so also the State is under an
obligation to protect the life of the persons who are not citizens.”
On the second point, the Court rejected the argument of Sovereign immunity and further
observed:
“The theory of Sovereign power which was propounded in Kasturi Lal's case (AIR 1965 SC
1039) has yielded to new theories and is no longer available in a welfare State. It may be
pointed out that functions of the Govt. in a welfare State are manifold, all of which cannot be
said to be the activities relating to exercise of Sovereign powers. The functions of the State
not only relate to the defence of the country or the administration of Justice, but they extend
to many other spheres as, for example education, commercial, social, economic, political
and even marital. These activities cannot be said to be related to Sovereign power.”
Referring to several earlier decisions of the Court, on the last point it further held:
“……the contention that Smt. Hanuffa Khatoon should have approached the Civil Court for
damages and the matter should not have been considered in a petition under Article 226 of
the Constitution, cannot be accepted. Where public functionaries are involved and the matter
relates to the violation of Fundamental Rights or the enforcement of public duties, the
remedy would still be available under the Public Law notwithstanding that a suit could be
filed for damages under Private Law.”
4) Shri Bodhisattwa Gautam v. Miss Subhra Chakraborty, AIR 1996 SC 922.
(Rape amounts to violation of the Fundamental Right guaranteed to a woman
under Article 21 of the Constitution)
In this case the accused induced the complainant and cohabited with her giving her false
assurance of marriage. He had also gone through certain marriage ceremony with
knowledge that it was not valid marriage and thereby dishonestly made complainant to
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elieve that she was lawfully married wife of accused. The accused even committed offence
of miscarriage by compelling complainant to undergo abortion twice against her free will. The
Court ruled that it had the power to award interim compensation to the victim of rape before
final conviction of the offender.
The Court observed:
“This Court, as the highest Court of the country, has a variety of jurisdiction. Under Article 32
of the Constitution, it has the jurisdiction to enforce the Fundamental Rights guaranteed by
the Constitution by issuing writs in the nature of Habeas Corpus, Mandamus, Prohibition,
Quo-Warranto and Certiorari. Fundamental Rights can be enforced even against private
bodies and individuals. Even the right to approach the Supreme Court for the enforcement of
the Fundamental Rights under Article 32 itself is a Fundamental Right. The jurisdiction
enjoyed by this Court under Article 32 is very wide as this Court, while considering a petition
for the enforcement of any of the Fundamental Rights guaranteed in Part III of the
Constitution, can declare an Act to be ultra vires or beyond the competence of the legislature
and has also the power to award compensation for the violation of the Fundamental Rights.”
The Court further observed:
“Rape is thus not only a crime against the person of a woman (victim), it is a cirme against
the entire society. It destroys the entire psychology of a woman and pushes her into deep
emotional crises. It is only by her sheer will power that she rehabilitates herself in the society
which, on coming to know of the rape, looks down upon her in derision and contempt. Rape
is, therefore, the most hated crime. It is a crime against basic human rights and is also
violative of the victim's most cherished of the Fundamental Rights, namely, the Right to Life
contained in Article 21. To many faminists and psychiatrists, rape is less a sexual offence
than an act of aggression aimed at degrating and humiliating women. The rape laws do not,
unforunately, take care of the social aspect of the matter and are inept in many respects.”
5) Delhi Domestic Working Women's Forum v. Union of India, (1995) 1 SCC 14.
(Direction in handling rape victims)
In this case, women domestic servants subjected to indecent physical assault by army
personnel in train. A writ petition filed by women's forum to expose pathetic plight of such
victims. The Court gave certain directions to deal with such victims. It also called upon the
National Commission for Women to engage itself in drafting scheme providing relief to
victims of such cases. It also urged the Union of India to take necessary steps subsequently
as regards framing scheme for compensation and rehabilitation to ensure justice to victims
of such crimes of violence.
The Court held:
“It is rather unfortunate that in recent times, there has been an increase in violence against
women causing serious concern. Rape does indeed pose a series of problems for the
criminal justice system. There are cries for harshest penalties, but often times such crimes
eclipse the real plight of the victim. Rape is an experience which shakes the foundations of
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the lives of the victims. For many, its effect is a long-term one, impairing their capacity for
personal relationships, altering their behaviour values and generating and less fears. In
addition to the trauma of the rape itselts, victims have had to suffer further agony during
legal proceedings.”
This Court further observed as under:
“The defects in the present system are : Firstly, complaints are handled roughly and are not
even such attention as is warranted. The victims, more often than not, are humiliated by the
police. The victims have invariably found rape trials a traumatic experience. The experience
of giving evidence in court has been negative and destructive. The victims often say, they
considered the ordeal to be even worse than the rape itself. Undoubtedly, the court
proceedings added to and prolonged the psychological stress they had had to suffer as a
result of the rape itself.
In this background, it is necessary to indicate the broad parameters in assisting the victims
of rape.
1. The complainants of sexual assault cases should be provided with legal representation.
It is important to have some one who is well-acquainted with the criminal justice system.
The role of the victim's advocate would not only be to explain to the victim the nature of
the proceedings, to prepare her for the case and to assist her in the police station and in
court but to provide her with guidance as to how she might obtain help of a different
nature from other agencies, for example, mind counselling or medical assistance. It is
important to secure continuity of assistance by ensuring that the same person who
looked after the complainant's interests in the police station represnet her till the end of
the case.
2. Legal assistance will have to be provided at the police station since the victim of sexual
assault might very well be in a distressed state upon arrival at the police station, the
guidance and support of a lawyer at this stage and whilst she was being questioned
would be of great assistance to her.
3. The police should be under a duty to inform the victim of her right to representation
before any questions were asked of her and that the police report should state that the
victim was so informed.
4. A list of advocates willing to act in these cases should be kept at the police station for
victims who did not have a particular lawyer in mind or whose own lawyer was
unavailable.
5. The advocate shall be appointed by the court, upon application by the police at the
earliest convenient movement, but in order to ensure that victims were questioned
without undue delay, advocates would be authorised to act at the police station before
leave of the court was sought or obtained.
6. In all rape trials anonymity of the victims must be maintained, as far as necessary.
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7. It is necessary, having regard to the Directive Principles contained under Article 38(1) of
the Constitution of India to set up Criminal Injuries Compensation Board. Rape victims
frequently incur substantial financial loss. Some, for example, are too traumatised to
continue in employment.
8. Compensation for victims shall be awarded by the court on conviction of the offender and
by the Criminal Injuries Compensation Board whether or not a conviction has taken
place. The Board will take into account pain, suffering and shock as well as loss of
earnings due to pregnancy and the expenses of the child but if this occurred as a result
of the rape.
In the present situation, the third respondent will have to evolve such scheme as to wipe out
the fears of such unfortunate victims. Such a scheme shall be prepared within six months
from the date of this judgment. Thereupon, the Union of India, will examine the same and
shall take necessary steps for the implementation of the scheme at the earliest.”
6) State of Himachal Pradesh v. Raghubir Singh, (1993) 2 SCC 622. (Sole
testimony of the prosecutrix in a rape case)
This was a case of rape of a minor girl aged 7/8 years. Medical examination confirmed
sexual assault on body of prosecutrix. The Court found prosecutrix statement to be truthful
and reliable and amply corroborated by evidence of father and medical evidence. It held,
conviction can be recorded on sole testimony of prosecutrix if her evidence inspires
confidence and there is absence of circumstances which militates against her veracity.
It observed:
“There is no legal compulsion to look for corroboration of the evidence of the prosecutrix
before recording an order of conviction. Evidence has to be weighed and not counted.
Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires
confidence and there is absence of circumstances which militate her veracity. In the present
case the evidence of the prosecutrix is found to be reliable and trustworthy. No corroboration
was required to be looked for, though enough was available on the record. The medical
evidence provided sufficient corroboration.”
III. RIGHT AGAINST UNTOUCHABILITY
State of Karnataka v. Appa Balu Ingale and others, AIR 1993 SC 1126.
(Untouchability)
Appa Balu Ingale and four others were tried for the offences under Sections 4 and 7 of the
Protection of Civil Rights Act, 1955 (The Act). The trial court convicted all of them under
Section 4 of the Act and sentenced them to undergo simple imprisonment for one month and
a fine of Rs. 100 each and in default to suffer simple imprisonment for further five days.
Appa Balu Ingale was further convicted under Section 7 of the Act but no separate sentence
was awarded to him for the said offence. But the High Court overruled the lower court
decision. The charge against the respondents was that they restrained the complainant party
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y show of force from taking water from a newly dug-up borewell on the ground that they
were untouchables. The Supreme Court upheld the decision of the trial court and held:
“The preamble of the Indian Constitution imbued among its people with pride of being its
citizens in an intergrated Bharat with fraternity, dignity of person and equality of status. But
castism; sectional and religious diversities and parochialism are disintegating the people.
Social stratification need restructure. Democracy meant fundamental changes in the social
and economic life of the people, absence of inequitous conditions, inequalities and
discrimination. There can be no dignity of person without equality of status and opportunity.
Denial of equal opportunities in any walk of social life is denial of equal status and amounts
to prevent equal participation in social intercourse and deprivation of equal access to social
means. Humane relations based on equality, equal protection of laws without discrimination
would alone generate amity and affinity among the heterogenous sections of the Indian
society and a feeling of equal participants in the democratic polity. Adoption of new ethos
and environment are, therefore, imperatives to transform the diffracted society into high
degree of mobility for establishing an egalitarian social order in Secular Socialist Democratic
Bharat Republic. "Untouchability" of the Dalits stands an impediment for its transition and is
a bane and blot on civilised society.
……Article 17 of the Constitution of India, in Part III, a Fundamental Right, made an epoch
making declaration that "untouchability" is abolished and its practice in any form is forbidden.
The enforcement of any disability arising out of "untouchability" shall be an offence
punishable in accordance with law. In exercise of the power in second part of Article 17 and
Article 35(a)(ii), the Untouchability (Offences) Act 1955 was made, which was renamed in
1976 as "Protection of Civil Rights Act", for short 'the Act'. Abolition of untouchability in itself
is complete and its effect is all prevading applicable to state actions as well as acts of
omission by individuals, institutions, juristic or body of persons. Despite its abolition it is
being practised with impunity more in breach. More than 75% of the cases under the Act are
ending in acquittal at all levels. Apathy and lack of proper perspectives even by the courts in
tackling the naughty problem is obvious. For the first time after 42 years of the Constitution
came into force this first case has come up to this Court to consider the problem. The Act is
not a penal law simpliciter but bears behind it monstreous untouchability relentlessly
practised for centuries dehumanising the Dalits, constitution's animation to have it eradicated
and to assimilate 1/5th of Nation's population in the main stream of national life. Therefore, I
feel that it would be imperative to broach the problem not merely from the perspectives of
criminal jurisprudence, but more also from socialogical and constitutional angulations. While
respectfully agreeing with my learned brother Kuldip Singh, J. on his reasoning, conclusions
and conviction, it is expedient, therefore, to have the case considered from the above back
drop and address ourselves to the questions that arose for decision.
………Proverty and penury made the Dalits as dependants and became vulnerable to
oppression. The slightest attempt to assert equality or its perceived exercise receives the ire
of the dominent sections of the society and the Dalits would become the object of atrocities
and oppression. The lack of resources made the Dalits vulnerable to economic and social
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oycott. Their abject poverty and dependence on the upper classes in Rural Indian for
livelihood stands a constant constraint to exercise their rights - social, legal or constitutional,
though guaranteed. Thus they have neither money capacity, influence nor means to
vindicate their rights except occasional collective action which would be defeased or flittered
away by pressures through diverse forms. Consequently most of the Dalits are continuing to
languish under the yoke of the practice of untouchability. The State has the duty to protect
them and render social justice to them.
……..Neither the Constitution nor the Act defined 'Untouchability'. Reasons are obvious. It is
not capable of precise definition. It encompasses acts/practices committed against Dalits in
diverse forms. Mahatama Gandhiji in his 'My philosophy of Life' edited by A.T. Hingorani
1961 Edn. at p. 146, stated that "untouchability means pollution by the touch of certain
person by reason of their birth in a particular state of family. It is a phenomenon peculiar to
Hinduism and has got no warrant in reasons or sastras". According to Dr. Ambedkar, "the
untouchability is the notion of defilement, pollution, contamination and the ways and means
of getting rid of that defilement. It is a permanent hereditary stain which nothing can
cleanse". The Parliamentary Committee on Untouchability headed by L. Elayaperumal in
their 1969 report stated that 'untouchability' is a basic and unique feature and inseparably
linked up with the caste system and social set up based upon it. It does not require much
research to realise that the phenomenon of untouchability in this country is fundamentally of
a religious or political origin. Untouchability is not a separate institution by itself, it is a
corollary of the institution of the caste system of Hindu Society. It is an attitude on the part of
a whole group of people. It is a spirit of social aggression that underlies this attitude.
……..Thus it could be concluded that the untouchability has been grown as an integral facet
of socio-religious practices being observed for over centuries; kept the Dalits away from the
main-stream of the Society on diverse grounds, be it of religious, customary, unfounded
beliefs of pollution etc. It is an attitude and way of behaviour of the general public of the
Indian social order towards Dalits. Though it has grown as an integral part of caste system, it
became an institution by itself and it enforces disabilities, restrictions, conditions and
prohibitions on Dalits for access to and the use of places of public resort, public means,
roads, temples, water sources, tanks, bathing ghats, etc., entry into educational institutions
or pursuits of avocation or profession which are open to all and by reason of birth they suffer
from social stigma. Untouchability and birth as a scheduled caste are thus intertwine root
causes. Untouchability, therefore, is founded upon prejudicial hatred towards Dalits as in
independent institution. It is an attitude to regard Dalits as pollutants, inferiors and outcastes.
It is not founded on mense rea. The practice of untouchability in any form is,
therefore, a crime against the Constitution. The Act also protects civil rights of Dalits. The
abolition of untouchability is the arch of the Constitution to make its preamble meaningful
and to integrate the Dalits in the national main-stream.”
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IV. WITNESS PROTECTION
1) State of Andhra Pradesh v. S. Rayappa and Others, (2006) 4 SCC 512.
(Interested witness)
The Supreme Court overruled the judgment of the High Court of Andhra Pradesh which
acquitted all the accused persons in connection with a murder discarding the evidence of the
two close relatives of the deceased considering them to be ‘interested witnesses’.
The SC held:
“By now it is a well-established principle of law that testimony of a witness otherwise
inspiring confidence cannot be discarded on the ground that he being a relation of the
deceased is an interested witness. A close relative who is a very natural witness cannot be
termed as an interested witness. The term interested postulates that the person concerned
must have some direct interest in seeing the accused person being convicted somehow or
the other either because of animosity or some other reasons.
On the contrary it has now almost become a fashion that the public is reluctant to appear
and depose before the Court especially in criminal case because of varied reasons. Criminal
cases are kept dragging for years to come and the witnesses are a harassed lot. They are
being threatened, intimidated and at the top of all they are subjected to lengthy crossexamination.
In such a situation, the only natural witness available to the prosecution would
be the relative witness. The relative witness is not necessarily an interested witness. On the
other hand, being a close relation to the deceased they will try to prosecute the real culprit
by stating the truth. There is no reason as to why a close relative will implicate and depose
falsely against somebody and screen the real culprit to escape unpunished. The only
requirement is that the testimony of the relative witnesses should be examined cautiously.
It also held that non-examination of independent witnesses, in such a situation, would be no
ground to discard the otherwise creditworthy testimony of available witnesses, which inspires
confidence.
2) Zahira Habibulla H. Sheikh and Anr. v. State of Gujarat and Ors., (2004) 4
SCC 158 (Protection of witness and fair trial)
In one of the most high profile criminal case in the recent past, the Best Bakery case, both
the fast track court as well as the High Court of Gujarat acquitted all 21 persons accused for
insufficient evidence after 37 out of 73 witnesses, including key witness Zaheera Sheikh,
turned hostile. Although at that time, reasonable suspicion was raised that witnesses were
being threatened or coerced, however, no steps were taken by public prosecutor to protect
star witness and no request was made by public prosecutor to hold trial in a camera. The
incident that took place in Vadodara in March 2002, 14 persons lost their lives during public
riots; yet the trials that followed could not convict anyone for these murders. Later on, in an
application to the SC, Zaheera alleged that she was threatened and intimidated not to tell the
truth before the trial court and prayed for the re-trail of the case outside Gujarat. In a unique
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judgment, 2 the Supreme Court directed the Bombay High Court for retrial in a competent
court under it’s jurisdiction of and appointment of another public prosecutor. Though the SC
has held Zaheera for perjury recently but it is an undenying fact that the change of the venue
of trail witnessed Mumbai court handing over life sentence to 9 accused who walked out scot
free earlier.
The Court came down heavily on the manner the trial was conducted with the witnesses
virtually left defenceless against external pressure and also the reasoning of the High Court,
which turned down Zahira’s appeal for refusing re-trail of the case.
It observed:
“The Courts have to take a participatory role in a trial. They are not expected to be tape
recorders to record whatever is being stated by the witnesses. Section 311 of the Code and
Section 165 of the Evidence Act confer vast and wide powers on Presiding Officers of Court
to elicit all necessary materials by playing an active role in the evidence collecting process.
….The Court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to
such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The
prosecutor who does not act fairly and acts more like a counsel for the defence is a liability
to the fair judicial system, and Courts could not also play into the hands of such prosecuting
agency showing indifference or adopting an attitude of total aloofness”
With respect to decision of the High Court, it further observed:
“The entire approach of the High Court suffers from serious infirmities, its conclusions
lopsided and lacks proper or judicious application of mind. Arbitrariness is found writ large on
the approach as well as the conclusions arrived at in the judgment under challenge, in
unreasonably keeping out relevant evidence from being brought on record…..If the
investigation was faulty, it was not the fault of the victims or the witnesses…. In the case of a
defective investigation the Court has to be circumspect in evaluating the evidence and may
have to adopt an active and analystical role to ensure that truth is found by having recourse
to Section 311 or at a later stage also resorting to Section 391 instead of throwing hands in
the air in despair. It would not be right in acquitting an accused person solely on account of
the defect; to do so would tantamount to playing into the hands of the investigating officer if
the investigation is designedly defective.
……In the background of principles underlying Section 311 and Section 391 of the Code and
Section 165 of the Evidence Act it has to be seen as to whether the High Court's approach is
correct and whether it had acted justly, reasonably and fairly in placing premiums on the
serious lapses of grave magnitude by the prosecuting agencies and the Trial Court, as well.
There are several infirmities which are tell tale even to the naked eye of even an ordinary
common man. The High Court has come to a definite conclusion that the investigation
carried out by the police was dishonest and faulty. That was and should have been per se
sufficient justification to direct a re-trial of the case. There was no reason for the High Court
2 (2004) 4 SCC 158.
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to come to the further conclusion of its own about false implication without concrete basis
and that too merely on conjectures.”
The concern of the Supreme Court was captured in the following words:
“….Criminal trials should not be reduced to be the mock trials or shadow boxing or fixed
trials. Judicial Criminal Administration System must be kept clean and beyond the reason of
whimsical political wills or agendas and properly insulated from discriminatory standards or
yardsticks of the type prohibited by the mandate of the Constitution.
.......This appears to be a case where the truth has become a casualty in the trial. We are
satisfied that it is fit and proper case, in the background of the nature of additional evidence
sought to be adduced and the perfunctory manner of trial conducted on the basis of tainted
investigation a re-trial is a must and essentially called for in order to save and preserve the
justice delivery system unsullied and unscathed by vested interests. We should not be
understood to have held that whenever additional evidence is accepted, re-trial is a
necessary corollary. The case on hand is without parallel and comparison to any of the case
where even such grievances were sought to be made. It stands on its own as an exemplary
one, special of its kind, necessary to prevent its recurrence. It is normally for the Appellate
Court to decide whether the adjudication itself by taking into account the additional evidence
would be proper or it would be appropriate to direct a fresh trial, though, on the facts of this
case, the direction for re-trail becomes inevitable.”
C) Supreme Court Guidelines on Lawful Arrest
Torture of ordinary criminal suspects and political prisoners by police has long been
widespread in India. Torture and ill-treatment are used to extract confessions, to extort
money and to punish detainees. Methods of torture and ill-treatment include electric shocks,
suspension from ceilings, severe beating with lathis (long wooden sticks) and kicking. Most
torture occurs during periods of illegal detention following arrests that are unrecorded.
Torture persists despite official acknowledgment of the problem and a series of positive
judicial and administrative initiatives in recent years. 3
In September 1996 the Supreme Court of India made a landmark judgment condemning
custodial violence and making several recommendations (see below). This allowed the
development of practical mechanisms for preventing torture during arrest and detention and
has had a significant impact on the manner in which individuals can be arrested and
detained. Although levels of custodial violence have continued to be high, the judgment has
forced police to rethink their widespread use of illegal detention and torture, and has
provided human rights activists with a stronger legal position from which to challenge such
practices. Crucially, the Supreme Court has treated custodial violence as an ongoing
concern and continues to monitor implementation of its recommended safeguards and to
issue further orders to protect detainees.
3 Torture is not explicitly prohibited by Indian law. India signed the Convention against Torture in 1997 but had
not yet ratified it at the time of writing of this manual.
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Background to the 1996 judgment
The origins of the 1996 judgment lie in the state of West Bengal 10 years earlier. On 26
August 1986 the Executive Chairman of the Legal Aid Services, D.K. Basu, wrote to the
Chief Justice of the Supreme Court of India highlighting concerns about custodial violence in
the state and reported deaths in custody. 4 He argued that it was vital to examine the issues,
develop “custody jurisprudence”, formulate steps for awarding compensation to the victims
or their relatives, and ensure accountability of police officers found responsible for torture.
The Supreme Court accepted D.K. Basu’s request that his letter be treated as a Public
Interest Litigation and asked the respondents – the State of West Bengal – to reply to the
charges made in the petition. The state government of West Bengal replied that the police
were not covering up deaths in custody and that wherever police personnel were found to be
responsible, action was being taken against them.
On 14 August 1987 the Supreme Court stated that there were increasing allegations of
custodial violence in almost every state and a rising number of reported deaths in custody.
The Court noted that there appeared to be no machinery to deal effectively with such
allegations. It issued an order requesting all state governments to provide their response to
the allegations, and further requesting the Law Commission of India to make suitable
suggestions in relation to the question of custodial violence.
In response to this order, affidavits were filed by several state governments, by the central
government and by the Law Commission of India concerning custodial violence. The Court
appointed a Supreme Court lawyer, Dr A.M. Singhvi, to act as amicus curiae (friend of the
court) to help it gather information on custodial violence.
In 1992 D.K. Basu – by this time a judge with the West Bengal High Court – gave a
comprehensive judgment in his court on the issue of custodial violence. He set out in full the
processes he thought should be followed to prevent custodial violence, to ensure
independent investigations leading to prosecution of those responsible, and to provide
compensation for victims.
In the meantime, between 1986 and 1996, newspapers reported cases of torture and deaths
in custody, human rights organizations raised such cases and pursued them in the courts,
and Amnesty International conducted a major international campaign on human rights
violations in India, putting forward detailed recommendations on arrest and custody
procedures to combat torture and other abuses of human rights.
The 1996 judgment
In 1996 the Supreme Court finally issued its judgment in the case of Basu v. State of West
Bengal. 5
The judgment expressed the Supreme Court’s concern that “torture is more
widespread now than ever before”. It stated that “‘[c]ustodial torture’ is a naked violation of
4 D.K. Basu was, in the 1970s, an advocate practising in the West Bengal High Court, where he spent much of
his time defending victims of torture. He founded the Legal Aid Services–West Bengal, a state-level social
action group based in Calcutta.
5 AIR 1997 SC 610.
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human dignity and degradation which destroys, to a very large extent, the individual
personality. It is a calculated assault on human dignity and whenever human dignity is
wounded, civilization takes a step backward.”
The judgment referred to international human rights standards and to the fact that Article 21
of the Constitution of India protects the right to life, a provision that has been held by the
Indian courts to include a guarantee against torture. It also made general recommendations
relating to amendments to the law on burden of proof and the need for police training, and
put forward arguments against the right to sovereign immunity for agents of the state
responsible for torture and in favour of compensation.
The judgment’s most far-reaching legacy is its 11 “requirements” to be followed in all cases
of arrest and detention (para. 35). The “requirements” would, the Court hoped, “help to curb,
if not totally eliminate, the use of questionable methods during interrogation and
investigation” (para. 39). Briefly (and paraphrased), the requirements set out by the Supreme
Court are as follows:
Police arresting and interrogating suspects should wear “accurate, visible and clear”
identification and name tags, and details of interrogating police officers should be
recorded in a register. 6
Police making an arrest should prepare a memo of arrest to be signed by a witness and
countersigned by the arrested person, giving the time and date of arrest.
Anyone arrested should be entitled to have a friend or relative informed of their arrest and
place of detention “as soon as practicable”. 7
If such a friend or relative lives outside the district, the time and place of arrest and place of
detention should be notified to them by police through the Legal Aid Organization within
eight to 12 hours.
Anyone arrested should be informed of their right to inform someone of their arrest and
detention “as soon as” they are arrested.
Information about the arrest and the details of the person informed of the arrest should be
kept in a diary at the place of detention along with names of police officers supervising
custody. 8
On request, anyone arrested should be examined at the time of arrest and any injuries
recorded. This “inspection memo” should be signed by the arrested person and the
arresting police officer, and a copy given to the arrested person. 9
6 Plainclothes police officers have regularly arrested and interrogated people in India, making it difficult for
victims to identify their torturers.
7 This is an important safeguard against unacknowledged illegal detention, particularly crucial in areas of armed
conflict in India where “disappearances” are common.
8 The practice of keeping a “general diary” of arrests at police stations has fallen into disuse, so there are often
no records that people have been detained. Lawyers or judicial authorities depend on these records if there are
complaints of ill-treatment or other abuses during detention.
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Anyone arrested should be medically examined by a doctor every 48 hours during
detention. 10
Copies of all the documents referred to above should be sent to the magistrate. 11
Anyone arrested should be permitted to meet their lawyer during interrogation “though not
throughout the interrogation”.
A police control room should be established at all district and state headquarters with
information regarding details of those arrested and their place of custody displayed on a
notice board.
Although the Supreme Court commented that these requirements should be followed until
“legal provisions are made in that behalf” (para. 35), it was no doubt aware of previous
judicial directions along similar lines which had still not led to amendments in law. The Court
could not direct the government to enact legislation, but stated that in its opinion it was
clearly desirable that existing legislation should be amended to incorporate the
“requirements”. This view was supported in November 2000 by the Law Commission of
India, which in its Consultation Paper on Law Relating to Arrest recommended incorporation
of the “requirements” into law. As of June 2002 the Indian government had not given any
commitment that it intended to do so.
To reinforce the “requirements”, the judgment stated that “Failure to comply with the
requirements herein above-mentioned shall, apart from rendering the concerned official
liable for departmental action, also render him liable to be punished for contempt of court
and the proceedings for contempt of court may be instituted in any High Court of the country
having territorial jurisdiction over the matter” (para. 36). The judgment further ordered that
the requirements be issued to the Director Generals of Police and Home Secretaries of all
states who in turn are obliged to circulate them to every police station under their jurisdiction
and to have them posted in a conspicuous place in every police station. It also
recommended that the requirements be broadcast on radio and television and distributed in
pamphlets in local languages “creating awareness... transparency and accountability” (para.
39).
SOURCE: Largely borrowed from Amnesty International, Combating Torture: A Manual for
Action with modifications.
Available at http://web.amnesty.org/library/Index/ENGACT400012003?open&of=ENG-ZAF
9 Police in India have often claimed that detainees were injured before arrest or were unwell at the time of arrest
and that their condition subsequently deteriorated, thereby arguing that deaths in custody were not the result of
police violence.
10 In issuing this requirement, the court was seeking to ensure evidence of the medical condition of detainees as
a means of guarding against conflicting allegations of torture, etc.
11 Under section 57 of the Code of Criminal Procedure, all detainees in India must be brought before a
magistrate within 24 hours of arrest. The magistrate then decides whether to remand them to further police or
judicial custody. By requiring that these initial custody records are forwarded to the magistrate at the time of the
detainee’s appearance before the magistrate, the Supreme Court was attempting to provide checks for the
magistrate to ensure that proper legal procedures had been followed. Under normal circumstances the magistrate
would only have the word of the detainee or their lawyer against that of the police if there were allegations of
illegal detention.
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D) Supreme Court Guidelines on Sexual Harassment at Workplace
The Supreme Court's judgment in Visakha's case 12 is a landmark for more than one reason.
Not only was sexual harassment at the work place recognized under the Indian
jurisprudence as a crucial problem faced by women workers, it also set out detailed
guidelines for prevention and redressal of this malaise. The judgment was delivered by
J.S.Verma. CJ, on behalf of Sujata Manohar and B.N.Kirpal, JJ., on a writ petition filed by
‘Vihska’- a non Governmental organization working for gender equality by way of PIL
seeking enforcement of fundamental rights of working women under Article.21 of the
Constitution. The immediate cause for filing the petition was the alleged brutal gang rape of
a village-level social worker of Rajasthan who tried to stop a child marriage taking place in
her village.
Gender equality includes protection from sexual harassment and right to work with dignity,
which is a universally recognized basic human right. The common minimum requirement of
this right has received global acceptance. The International Conventions and norms are,
therefore, of great significance in the formulation of the guidelines to achieve this purpose.
In view of this and the absence of enacted law to provide for the effective enforcement of the
basic human right of gender equality and guarantee against sexual harassment and abuse,
more particularly against sexual harassment at work places, the Supreme Court in this case
incorporated various provisions of 'Convention on the Elimination of All Forms of
Discrimination against Women' into the Indian law laying down the guidelines and norms
specified hereinafter for due observance at all work places or other institutions, until a
legislation is enacted for the purpose. This was done in exercise of the power available
under Article 32 of the Constitution for enforcement of the fundamental rights and it is further
emphasised that this would be treated as the law declared by this Court under Article 141 of
the Constitution.
The guidelines and norms pre-scribed herein are as under:
Having regard to the definition of 'human rights' in Section 2(d) of the Protection of Human
Rights Act, 1993.
Taking note of the fact that the present civil and penal laws in India do not adequately
provide for specific protection of women from sexual harassment in work places and that
enactment of such legislation will take considerable time.
It is necessary and expedient for employers in work places as well as other responsible
persons or institutions to observe certain guidelines to ensure the prevention of sexual
harassment of women:
1. Duty of the Employer or other responsible persons in work places and other
institutions:
12 Vishaka and others v. State of Rajasthan and Others, AIR 1997 SC 3011.
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It shall be the duty of the employer or other responsible persons in work places or other
institutions to prevent or deter the commission of acts of sexual harassment and to provide
the procedures for the resolution, settlement or prosecution of acts of sexual harassment by
taking all steps required.
2. Definition:
For this purpose, sexual harassment includes such unwelcome sexually determined
behaviour (whether directly or by implication) as:
a) physical contact and advances;
b) a demand or request for sexual favours;
c) sexually coloured remarks;
d) showing pornography;
e) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
Where any of these acts is committed in circumstances whereunder the victim of such
conduct has a reasonable apprehension that in relation to the victim's employment or work
whether she is drawing salary, or honorarium or voluntary, whether in Government, public or
private enterprise such conduct can be humiliating and may constitute a health and safety
problem. It is discriminatory for instance when the woman has reasonable grounds to believe
that her objection would disadvantage her in connection with her employment or work
including recruiting or promotion or when it creates a hostile work environment. Adverse
consequences might be visited if the victim does not consent to the conduct in question or
raises any objection thereto.
3. Preventive Steps:
All employers or persons in charge of work place whether in the public or private sector
should take appropriate steps to prevent sexual harassment. Without prejudice to the
generality of this obligation they should take the following steps:
a. Express prohibition of sexual harassment as defined above at the work place should be
notified, published and circulated in appropriate ways.
b. The Rules/Regulations of Government and Public Sector bodies relating to conduct and
discipline should include rules/regulations prohibiting sexual harassment and provide for
appropriate penalties in such rules against the offender.
c. As regards private employers steps should be taken to include the aforesaid prohibitions
in the. standing orders under the Industrial Employment (Standing Orders) Act, 1946.
d. Appropriate work conditions should be provided in respect of work, leisure, health and
hygiene to further ensure that there is no hostile environment towards women at work
places and no employee woman should have reasonable grounds to believe that she is
disadvantaged in connection with her employment.
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4. Criminal Proceedings:
Where such conduct amounts to a specific offence under the Indian Penal Code or
under any other law, the employer shall initiate appropriate action in accordance with law by
making a complaint with the appropriate authority.
In particular, it should ensure that victims, or witnesses are not victimized or
discriminated against while dealing with complaints of sexual harassment. The victims of
sexual harassment should have the option to seek transfer of the perpetrator or their own
transfer.
5. Disciplinary Action:
Where such conduct amounts to misconduct in employment as defined by the relevant
service rules, appropriate disciplinary action should be initiated by the employer in
accordance with those rules.
6. Complaint Mechanism:
Whether or not such conduct constitutes an offence under law or a breach of the service
rules, an appropriate complaint mechanism should be created in the employer's organization
for redress of the complaint made by the victim. Such complaint mechanism should ensure
time bound treatment of complaints.
7. Complaints Committee:
The complaint mechanism, referred to in (6) above, should be adequate to provide, where
necessary, a Complaints Committee, a special counselor or other support service, including
the maintenance of confidentiality.
The Complaints Committee should be headed by a woman and not less than half of its
member should be women. Further, to prevent the possibility of any undue pressure or
influence from senior levels, such Complaints Committee should involve a third party, either
NGO or other body who is familiar with the issue of sexual harassment.
The Complaints Committee must make an annual report to the Government department
concerned of the complaints and action taken by them.
The employers and person in charge will also report on the compliance with the aforesaid
guidelines including on the reports of the Complaints Committee to the Government
department.
8. Workers' Initiative:
Employees should be allowed to raise issues of sexual harassment at workers' meeting and
in other appropriate forum and it should be affirmatively discussed in Employer-Employee
Meetings.
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9. Awareness:
Awareness of the rights of female employees in this regard should be created in
particular by prominently notifying the guidelines (and appropriate legislation when enacted
on the subject) in a suitable manner.
10. Third Party Harassment:
Where sexual harassment occurs as a result of an act or omission by any third party or
outsider, the employer and person in charge will take all steps necessary and reasonable to
assist the affected person in terms of support and preventive action.
11. The Central/State Governments are requested to consider adopting suitable measures
including legislation to ensure that the guidelines laid down by this order are also observed
by the employers in Private Sector.
12. These guidelines will not prejudice any rights available under the Protection of Human
Rights Act, 1993.
The court ordered directed that:
“….the above guidelines and norms would be strictly observed in all work
places for the preservation and enforcement of the right to gender equality of the
working women. These directions would be binding and enforceable in law until
suitable legislation is enacted to occupy the field.”
E) National Human Rights Institutions
Introduction:
Apart from the formal justice delivery system in the country, there also exists a number of
statutory as well as constitutional institutions, which are referred to as National Human
Rights Institutions (NHRIs) which are entrusted with a complaint-mechanism system in case
of human rights violations, overseeing the status of human rights and work for its
improvement in the country. These institutions can always become important alternative
avenues in the fight against the torture. They are introduced briefly in the following pages.
1. The National Human Rights Commission
The National Human Rights Commission is an expression of India's concern for the
protection and promotion of human rights. It came into being in October, 1993. The
Protection of Human Rights Act 1993 (PHRA) provides for the establishment of a National
Human Rights Commission, State Human Rights Commission in States and Human Rights
Courts for better protection of Human Rights and for matters connected therewith or
incidental thereto.
The National as well as the State Commissions consist of a Chairperson and four members.
Website: http://www.nhrc.nic.in
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2. National Commission for Women
The National Commission for Women was set up as statutory body in January 1992 under
the National Commission for Women Act, 1990 ( Act No. 20 of 1990 of Govt.of India ) to :
• review the Constitutional and Legal safeguards for women ;
• recommend remedial legislative measures ;
• facilitate redressal of grievances and
• advise the Government on all policy matters affecting women.
In keeping with its mandate, the Commission initiated various steps to improve the status of
women and worked for their economic empowerment during the year under report. The
Commission completed its visits to all the States/UTs except Lakshdweep and prepared
Gender Profiles to assess the status of women and their empowerment. It received a large
number of complaints and acted suo-moto in several cases to provide speedy justice. It
took up the issue of child marriage, sponsored legal awareness programmes, Parivarik
Mahila Lok Adalats and reviewed laws such as Dowry Prohibition Act, 1961, PNDT Act
1994, Indian Penal Code 1860 and the National Commission for Women Act, 1990 to make
them more stringent and effective. It organized workshops/consultations, constituted expert
committees on economic empowerment of women, conducted workshops/seminars for
gender awareness and took up publicity campaign against female foeticide, violence against
women, etc. in order to generate awareness in the society against these social evils.
The Commission consists of a Chairperson and five members. At least one member each
shall be from amongst persons belonging to Scheduled Caste and Scheduled Tribe
respectively.
Website: http://ncw.nic.in/
3. National Commission for Minorities
The Government of India constituted a National Commission for Minorities in May, 1993. The
setting up of Minorities Commission was envisaged in the Ministry of Home Affairs
Resolution dated 12.01.1978, which specifically mentioned that “despite the safeguards
provided in the Constitution and the laws in force, there persists among the Minorities a
feeling of inequality and discrimination. In order to preserve secular traditions and to
promote National Integration the Government of India attaches the highest importance to the
enforcement of the safeguards provided for the Minorities and is of the firm view that
effective institutional arrangements are urgently required for the enforcement and
implementation of all the safeguards provided for the Minorities in the Constitution, in the
Central and State Laws and in the government policies and administrative schemes
enunciated from time to time." The Commission was charged with the function of evaluating
the various safeguards provided in the Constitution for the protection of the minorities and in
the laws passed by the Parliament and the State legislatures. In course of time, the
Commission suggested that its position be strengthened by conferring on it statutory powers
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of enquiry under the Commissions of Inquiry Act 1952. The Commission also suggested that
it be given a constitutional status so that it could function more effectively. Accordingly, the
Parliament enacted the Commission for Minorities Act, 1992 to establish the National
Commission for Minorities on a statutory basis.
An interesting feature of the Act is that it does not define the term ‘Minority’ but leaves it to
the Central Government to notify minorities for the purpose of the Act.
Website: http://www.ncm.nic.in
4. National Commission for Scheduled Castes
With a view to provide safeguards against the exploitation of Scheduled castes and
Scheduled Tribes and to promote and protect their social, educational, economic and
cultural interests, special provisions were made in the Constitution. Due to their social
disability and economic backwardness, they were grossly handicapped in getting reasonable
share in elected offices, Government jobs and educational institutions and, therefore, it was
considered necessary to follow a policy of reservations in their favour to ensure their
equitable participation in governance. Consequently, the National Commission for
Scheduled Castes and Scheduled Tribes came into being on passing of the Constitution
(Sixty fifth Amendment) Bill, 1990 which was notified on 8-6-1990. However, with the
Constitution (Eighty-Ninth Amendment) Act, 2003 coming into force on 19-2-2004 vide
Notification of that date, the National Commission for Scheduled Castes & Scheduled Tribes
got bifurcated and a separate National Commission for Scheduled Caste was constituted.
The Commission comprises of a Chairperson, a Vice-Chairperson and three other Members.
Website: http://ncsc.nic.in/
5. National Commission for Scheduled Tribes
Consequent upon the Constitution (Eighty-Ninth Amendment) Act, 2003 coming into force on
19-2-2004 vide Notification of that date, the National Commission for Scheduled Tribes was
set up under Article 338A on the bifurcation of the erstwhile National Commission for
Scheduled Castes and Scheduled Tribes to oversee the implementation of various
safeguards provided to Scheduled Tribes under the Constitution. The Commission
comprises a Chairperson, a Vice-Chairperson and three full time Members (including one
lady Member). The term of all the Members of the Commission is three years from the date
of assumption of charge. The National Commission for Scheduled Tribes functions from its
Headquarters at New Delhi and from the State Offices of the Commission located in six
States. The six State Offices of the National Commission for Scheduled Tribes which work
closely with the Commission. They keep a watch on the formulation of policy and issue of
guidelines relating to the welfare of Scheduled Tribes in the States and Union Territories and
keep the Commission’s Headquarters informed about the development periodically. Policy
decisions taken by any State Government/UT Administration affecting the interests of the
Scheduled Tribes are brought to the notice of the concerned authorities for necessary action.
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To investigate and monitor all matters relating to the safeguards provided for the Scheduled
Tribes, to inquire into specific complaints with respect to the deprivation of rights and
safeguards of the Scheduled Tribes, to participate and advise in the planning process of
socio-economic development of the STs, to make necessary recommendations for their
protection, welfare and socio-economic development are some of the duties and functions
assigned to the Commission.
F) Selected NHRC Guidelines
1. On Custodial Deaths/Rapes
a) Letter to all Chief Secretaries on the reporting of custodial deaths within 24
hours.
No. 66/SG/NHRC/93
National Human Rights Commission
Sardar Patel Bhavan
New Delhi
14 December, 1993
From:
R.V. Pillai, Secretary General
To:
Chief Secretaries of all States and Union Territories
Sir/Madam,
The National Human Rights Commission at its meeting held on the 6th instant discussed the
problems of custodial deaths and custodial rapes. In view of the rising number of incidents
and reported attempts to suppress or present a different picture of these incidents with the
lapse of time, the Commission has taken a view that a direction should be issued forthwith to
the District Magistrates and Superintendents of Police of every district that they should report
to the Secretary General of the Commission about such incidents within 24 hours of
occurrence or of these officers having come to know about such incidents. Failure to report
promptly would give rise to presumption that there was an attempt to suppress the incident.
2. It is accordingly requested that the District Magistrates/Superintendents of Police may be
given suitable instructions in this regard so as to ensure prompt communication of incidents
of custodial deaths/custodial rapes to the undersigned.
Yours faithfully,
Sd/-
(R.V. Pillai)
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) Letter to all Chief Secretaries clarifying that not only deaths in police
custody but also deaths in judicial custody be reported.
R. V. Pillai
Secretary General
F.No. 40/3/95-LD
National Human Rights Commission
June 21, 1995
To
Chief Secretaries of all States and Union Territories
Sir/Madam,
Vide letter No.66/SG/NHRC/93 dt. December 14, 1993, you were requested to give suitable
instructions to DMs/SPs to ensure prompt communication of incidents of custodial
deaths/custodial rapes.
2. A perusal of the reports received from DMs/SPs in pursuance of the above mentioned
communication reveals that reports are received in the Commission from some of the States,
only on deaths in police custody. The objective of the Commission is to collect information in
respect of custodial deaths in police as well as judicial custody. May I, therefore, request you
to have instructions sent to all concerned to see that deaths in judicial custody are also
reported to the Commission within the time frame indicated in my letter of December 14,
1993.
Yours faithfully,
Sd/-
(R. V. Pillai)
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c) Letter to Chief Ministers of States on the video filming of post-mortem
examinations in cases of custodial deaths.
Justice Ranganath Misra August 10,1995
Chairperson
My dear Chief Minister,
The National Human Rights Commission soon after its constitution in October, 1993, called
upon the law and order agencies at the district level throughout the country to report matters
relating to custodial death and custodial rape within 24 hours of occurrence. Since then
ordinarily reports of such incidents have been coming to the Commission through the official
district agencies. The Commission is deeply disturbed over the rising incidents of death in
police lock-up and jails. Scrutiny of the reports in respect of all these custodial deaths by the
Commission very often shows that the post-mortem in many cases has not been done
properly. Usually the reports are drawn up casually and do not at all help in the forming of an
opinion as to the cause of death. The Commission has formed an impression that a
systematic attempt is being made to suppress the truth and the report is merely the police
version of the incident.
The post-mortem report was intended to be the most valuable record and considerable
importance was being placed on this document in drawing conclusions about the death.
The Commission is of a prima-facie view that the local doctor succumbs to police pressure
which leads to distortion of the facts. The Commission would like that all post-mortem
examinations done in respect of deaths in police custody and in jails should be video-filmed
and cassettes be sent to the Commission along with the post-mortem report. The
Commission is alive to the fact that the process of video-filming will involve extra cost but
you would agree that human life is more valuable than the cost of video-filming and such
occasions should be very limited.
We would be happy if you would be good enough to immediately sensitise the higher
officials in your state police to introduce video-filming of post mortem examination with effect
from 1st October, 1995.
We look forward for your response within three weeks.
With regards,
To
Yours sincerely,
Sd/-
(Ranganath Misra)
Chief Ministers of all States, Pondicherry & the National Capital Territory of Delhi /
Governors of those States under the President’s rule.
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d) Letter to Chief Ministers/Administrators of all States/Union Territores with a
request to adopt the Model Autopsy form and the additional procedure for
inquest.
Justice M.N. Venkatachaliah
Chairperson
(Former Chief Justice of India)
No. NHRC/ID/PM/96/57
National Human Rights Commission
March 27, 1997
Dear Chief Minister,
May I invite your kind attention to a matter which NHRC considers of some moment in its
steps to deal with custodial deaths? The Commission on the 14 th December, 1993 had
issued a general circular requiring all the District Magistrates and the Superintendents of
Police to report to the Commission, incidents relating to custodial deaths and rapes within 24
hours of their occurrence. A number of instances have come to the Commission's notice
where the post-mortem reports appear to be doctored due to influence/pressure to protect
the interest of the police/jail officials. In some cases it was found that the post-mortem
examination was not carried out properly and in others, inordinate delays in their writing or
collecting. As there is hardly any outside independent evidence in cases of custodial
violence, the fate of the cases would depend entirely on the observations recorded and the
opinion given by the doctor in the post-mortem report. If post-mortem examination is not
thoroughly done or manipulated to suit vested interests, then the offender cannot be brought
to book and this would result in travesty of justice and serious violation of human rights in
custody would go on with impunity.
With a view to preventing such frauds, the Commission recommended to all the States to
video-film the post-mortem examination and send the cassettes to the Commission.
It was felt that the Autopsy Report forms now in use in the various States, are not
comprehensive and, therefore, do not serve the purpose and also give scope for doubt and
manipulation. The Commission, therefore, decided to revise the autopsy-form to plug the
loopholes and to make it more incisive and purposeful.
The Commission, after ascertaining the views of the States and discussing with the experts
in the field and taking into consideration, though not entirely adopting, the U.N. Model
Autopsy protocol, has prepared a Model Autopsy form enclosed as Annexure-I. 13
In this connection, it was felt that some incidental improvements are also called for in regard
to the conduct of inquests. For proper assessment of “Time since death” or ‘the time of
death’, determination of temperature changes and development of Rigor Mortis at the time of
13 Available at http://www.nhrc.nic.in (Pathway for the search: Homepage – Important Instructions – Custodial
deaths/Rape).
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first examination at the scene is essential. This can conveniently be done by following some
easily understandable and implementable procedure. The procedure to be followed by those
in charge of inquest, is indicated in Annexure-II 14 to this letter. This is a small but important
addition to the inquest procedure.
The Commission recommends your Government to prescribe the Model Autopsy Form
(Annexure-I) and the additional procedure for inquest as indicated in Annexure-II, to be
followed in your State with immediate effect.
I shall look forward to your kind and favourable response.
Yours sincerely,
Sd/-
(M.N. Venkatachaliah)
To
Chief Ministers of all States/Union Territories.
14 Available at http://www.nhrc.nic.in (Pathway for the search: Homepage – Important Instructions – Custodial
deaths/Rape).
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2. Revised Guidelines/Procedures to be followed in dealing with deaths
occurring in encounter deaths
The guidelines issued by the Commission in respect of procedures to be followed by the
State Govts. in dealing with deaths occurring in encounters with the police were circulated to
all Chief Secretaries of States and Administrators of Union Territories on 29.3.1997.
Subsequently on 2.12.2003, revised guidelines of the Commission have been issued and it
was emphasised that the States must send intimation to the Commission of all cases of
deaths arising out of police encounters. The Commission also recommended the modified
procedure to be followed by State Govts. in all cases of deaths, in the course of police
action, and it was made clear that where the police officer belonging to the same police
station are members of the encounter party, whose action resulted in deaths, such cases be
handed over for investigation to some other independent investigating agency, such as State
CBCID, and whenever a specific complaint is made against the police alleging commission
of a criminal act on their part, which makes out a cognisable case of culpable homicide, an
FIR to this effect must be registered under appropriate sections of the I.P.C. Such case shall
invariably be investigated by the State CBCID. A Magisterial Inquiry must invariably be held
in all cases of deaths which occur in the course of police action. The next of kin of the
deceased must invariably be associated in such inquiry.
All the Chief Ministers and Administrators have been directed to send a six monthly
statement of all cases of deaths in police action in the States/ UTs through the Director
General of Police to the Commission by the 15th Day of January and July respectively in the
proforma devised for the purpose.
Justice A.S. Anand
Chairperson
(Former Chief Justice of India)
2003
Dear Chief Minister,
2 nd December,
Death during the course of a police action is always a cause of concern to a civil society. It
attracts criticism from all quarters like Media, the general public and the NGO sector.
The police does not have a right to take away the life of a person. If, by his act, the
policeman kills a person, he commits an offence of culpable homicide or not amounting to
murder, unless it is established that such killing was not an offence under the law. Under the
scheme of criminal law prevailing in India, it would not be an offence if the death is caused in
exercise of right of private defence. Another provision under which the police officer can
justify causing the death of a person, is section 46 of the Criminal Procedure Code. This
provision authorizes the police to use reasonable force, even extending up to the causing of
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death, if found necessary to arrest the person accused of an offence punishable with death
or imprisonment for life. Thus, it is evident that death caused in an encounter if not justified
would amount to an offence of culpable homicide.
The Commission while dealing with complaint 234 (1 to 6)/ 93-94 and taking note of grave
human rights issue involved in alleged encounter deaths, decided to recommend procedure
to be followed in the cases of encounter death to all the states. Accordingly, Hon’ble Justice
Shri M.N. Venkatachaliah, the then Chairperson NHRC, wrote a letter dated 29/3/1997 to all
the Chief Ministers recommending the procedure to be followed by the states in “cases of
encounter deaths” (copy enclosed for ready reference).
Experience of the Commission in the past six years in the matters of encounter deaths has
not been encouraging. The Commission finds that most of the states are not following the
guidelines issued by it in the true sprit. It is of the opinion that in order to bring in
transparency and accountability of public servants, the existing guidelines require some
modifications.
Though under the existing guidelines, it is implicit that the States must send intimation to the
Commission of all cases of deaths arising out of police encounters, yet some States do not
send intimation on the pretext that there is no such specific direction. As a result, authentic
statistics of deaths occurring in various states as a result of police action are not readily
available in the Commission. The Commission is of the view that these statistics are
necessary for effective protection of human rights in exercise of the discharge of its duties.
On a careful consideration of the whole matter, the Commission recommends following
modified procedure to be followed by the State Governments in all cases of deaths in the
course of police action :-
A. When the police officer in charge of a Police Station receives information about the
deaths in an encounter between the Police party and others, he shall enter that
information in the appropriate register.
B. Where the police officers belonging to the same Police Station are members of the
encounter party, whose action resulted in deaths, it is desirable that such cases are
made over for investigation to some other independent investigating agency, such as
State CBCID.
C. Whenever a specific complaint is made against the police alleging commission of a
criminal act on their part, which makes out a cognisable case of culpable homicide, an
FIR to this effect must be registered under appropriate sections of the I.P.C. Such case
shall invariably be investigated by State CBCID.
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D. A Magisterial Inquiry must invariably be held in all cases of death which occur in the
course of police action. The next of kin of the deceased must invariably be associated in
such inquiry.
E. Prompt prosecution and disciplinary action must be initiated against all delinquent
officers found guilty in the magisterial enquiry/ police investigation.
F. Question of granting of compensation to the dependents of the deceased would depend
upon the facts and circumstances of each case.
G. No out-of-turn promotion or instant gallantry rewards shall be bestowed on the
concerned officers soon after the occurrence. It must be ensured at all costs that such
rewards are given/ recommended only when the gallantry of the concerned officer is
established beyond doubt.
H. A six monthly statement of all cases of deaths in police action in the State shall be sent
by the Director General of Police to the Commission, so as to reach its office by the 15th
day of January and July respectively. The statement may be sent in the following format
along with post-mortem reports and inquest reports, wherever available and also the
inquiry reports:-
1. Date and place of occurrence
2. Police Station, District.
3. Circumstances leading to deaths:
i. Self defence in encounter
ii. In the course of dispersal of unlawful assembly
iii. In the course of effecting arrest.
4. Brief facts of the incident
5. Criminal Case No.
6. Investigating Agency
7. Findings of the magisterial Inquiry/enquiry by Senior Officers:
a. disclosing in particular names and designation of police officials, if found
responsible for the death; and
b. whether use of force was justified and action taken was lawful.
It is requested that the concerned authorities of the State are given appropriate instructions
in this regard so that these guidelines are adhered to both in letter and in spirit.
With regards,
To
All Chief Ministers of States/UTs
Yours sincerely,
Sd/-
(A.S. Anand)
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3. On Visits to Police Lock-ups / Guidelines on Polygraph Tests and
Arrests
Letter to Chief Secretaries/Administrators of all States/Union Territories on the
Visit of NHRC's Officers to Police Lock-ups.
R.V. Pillai
Secretary General
National Human Rights Commission
Sardar Patel Bhavan, Sansad Marg,
New Delhi-110001.
DO No.15(13)/97-Coord
1 August, 1997
Dear Shri
Officers of the National Human Rights Commission visit various States in pursuance of the
directions issued by the Commission on a variety of items of work which come within its
statutory responsibilities.
2. In the context of reports received by the Commission on the condition of police lock-ups
in various States, the Commission has decided that the State Governments may be
requested to permit officers of the NHRC to visit the police lock-ups also during their
visits to States.
3. Accordingly, l am to request you to issue necessary instructions to enable officers of the
NHRC visiting your State to undertake visits to police lock-ups as well.
4. A line in confirmation of the instructions issued will be greatly appreciated.
With regards,
Yours sincerely,
Sd/
(R.V. Pillai)
To
All Chief Secretaries/Administrators of States & UTs.
153

4. NHRC Guidelines Regarding Arrest
D.R. Karthikeyan
Director General
No. 7/11/99-PRP&P
National Human Rights Commission
22nd November, 1999
To
The Chief Secretaries of all States/Union Territories
Sir,
After due consideration of all the aspects involved, the National Human Rights Commission
has adopted certain guidelines regarding “arrests”.
A note containing these guidelines approved by the Commission is enclosed herewith. The
Commission requests all the State Governments to translate these guidelines into their
respective regional language and make them available to all Police Officers and in all Police
Stations.
Senior officers visiting Police Stations may ensure the availability of such guidelines with
respective police officers and the Police Stations and ensure their compliance.
Yours faithfully,
Sd/-
(D. R. Karthikeyan)
Copy to:
1. Home Secretaries of all States/Union Territories
2. Directors General of Police of all States
Encl: As stated
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NHRC Guidelines Regarding Arrest
Need for Guidelines
Arrest involves restriction of liberty of a person arrested and therefore, infringes the basic
human rights of liberty. Nevertheless the Constitution of India as well as International human
rights law recognise the power of the State to arrest any person as a part of its primary role
of maintaining law and order. The Constitution requires a just, fair and reasonable procedure
established by law under which alone such deprivation of liberty is permissible.
Although Article 22(1) of the Constitution provides that every person placed under arrest
shall be informed as soon as may be the ground of arrest and shall not be denied the right to
consult and be defended by a lawyer of his choice and S.50 of the Code of Criminal
Procedure, 1973 (Cr. PC) requires a police officer arresting any person to “ forthwith
communicate to him full particulars of the offence for which he is arrested or other grounds
for such arrest”. in actual practice these requirements are observed more in the breach.
Likewise, the requirement of production of the arrested person before the court promptly
which is mandated both under the Constitution [Article22(2)] and the Cr. PC (Section 57] is
also not adhered to strictly.
A large number of complaints pertaining to Human Rights violations are in the area of abuse
of police powers, particularly those of arrest and detention. It has, therefore, become
necessary, with a view to narrowing the gap between law and practice, to prescribe
guidelines regarding arrest even while at the same time not unduly curtailing the power of
the police to effectively maintain and enforce law and order and proper investigation.
PRE-ARREST
The power to arrest without a warrant should be exercised only after a reasonable
satisfaction is reached, after some investigation, as to the genuine-ness and bonafides of
a complaint and a reasonable belief as to both the person’s complicity as well as the
need to effect arrest. [Joginder Kumar’s case-(1994) 4 SCC 260).
Arrest cannot be justified merely on the existence of power, as a matter of law, to arrest
without a warrant in a cognizable case.
After Joginder Kumar’s pronouncement of the Supreme Court the question whether the
power of arrest has been exercised reasonably or not is clearly a justiciable one.
Arrest in cognizable cases may be considered justified in one or other of the following
circumstances:
i. The case involves a grave offence like murder, dacoity, robbery, rape etc. and it
is necessary to arrest the suspect to prevent him from escaping or evading the
process of law.
ii. The suspect is given to violent behaviour and is likely to commit further offences.
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iii. The suspect requires to be prevented from destroying evidence or interfering with
witnesses or warning other suspects who have not yet been arrested.
iv. The suspect is a habitual offender who, unless arrested, is likely to commit similar
or further offences. [3rd Report of National Police Commission]
Except in heinous offences, as mentioned above, an arrest must be avoided if a police
officer issues notice to the person to attend the police station and not leave the station
without permission. (see Joginder Kumar’s case (1994) SCC 260).
The power to arrest must be avoided where the offences are bailable unless there is a
strong apprehension of the suspect absconding .
Police officers carrying out an arrest or interrogation should bear clear identification and
name tags with designations. The particulars of police personnel carrying out the arrest
or interrogation should be recorded contemporaneously, in a register kept at the police
station.
ARREST
As a rule use of force should be avoided while effecting arrest. However, in case of
forcible resistance to arrest, minimum force to overcome such resistance may be used.
However, care must be taken to ensure that injuries to the person being arrested, visible
or otherwise, is avoided.
The dignity of the person being arrested should be protected. Public display or parading
of the person arrested should not be permitted at any cost.
Searches of the person arrested must be done with due respect to the dignity of the
person, without force or aggression and with care for the person’s right to privacy.
Searches of women should only be made by other women with strict regard to decency.
(S.51(2) Cr.PC.)
The use of handcuffs or leg chains should be avoided and if at all, it should be resorted
to strictly in accordance with the law repeatedly explained and mandated in judgement of
the Supreme Court in Prem Shanker Shukla v. Delhi Administration [(1980) 3 SCC 526]
and Citizen for Democracy v. State of Assam [(1995) 3 SCC 743].
As far as is practicable women police officers should be associated where the person or
persons being arrested are women. The arrest of women between sunset and sunrise
should be avoided.
Where children or juveniles are sought to be arrested, no force or beatings should be
administered under any circumstances. Police Officers, may for this purpose, associate
respectable citizens so that the children or juveniles are not terrorised and minimal
coercion is used.
Where the arrest is without a warrant, the person arrested has to be immediately
informed of the grounds of arrest in a language which he or she understands. Again, for
this purpose, the police, if necessary may take the help of respectable citizens. These
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grounds must have already been recorded in writing in police records. The person
arrested should be shown the written reasons as well and also given a copy on demand.
(S.50(1) Cr.PC.)
The arrested person can, on a request made by him or her, demand that a friend,
relative or other person known to him be informed of the fact of his arrest and the place
of his detention. The police should record in a register the name of the person so
informed. [Joginder Kumar’s case (supra)].
If a person is arrested for a bailable offence, the police officer should inform him of his
entilement to be released on bail so that he may arrange for sureties. (S.50(2) Cr.PC.)
Apart from informing the person arrested of the above rights, the police should also
inform him of his right to consult and be defended by a lawyer of his choice. He should
also be informed that he is entitled to free legal aid at state expense [D.K. Basu’s case
(1997) 1 SCC].
When the person arrested is brought to the police station, he should, if he makes a
request in this regard, be given prompt medical assistance. He must be informed of this
right. Where the police officer finds that the arrested person is in a condition where he is
unable to make such request but is in need of medical help, he should promptly arrange
for the same. This must also be recorded contemporaneously in a register. The female
requesting for medical help should be examined only by a female registered medical
practitioner. (S.53 Cr.PC.)
Information regarding the arrest and the place of detention should be communicated by
the police officer effecting the arrest without any delay to the police Control Room and
District / State Headquarters. There must be a monitoring mechanism working round the
clock.
As soon as the person is arrested, police officer effecting the arrest shall make a mention
of the existence or non-existence of any injury(s) on the person of the arrestee in the
register of arrest. If any injuries are found on the person of the arrestee, full description
and other particulars as to the manner in which the injuries were caused should be
mentioned in the register, which entry shall also be signed by the police officer and the
arrestee. At the time of release of the arrestee, a certificate to the above effect under the
signature of the police officer shall be issued to the arrestee.
If the arrestee has been remanded to police custody under the orders of the court, the
arrestee should be subjected to medical examination by a trained Medical Officer every
48 hours during his detention in custody by a doctor on the panel of approved doctors
appointed by Director, Health Services of the concerned State or Union Territory. At the
time of his release from the police custody, the arrestee shall be got medically examined
and a certificate shall be issued to him stating therein the factual position of the
existence or nonexistence of any injuries on his person.
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POST ARREST
2. The person under arrest must be produced before the appropriate court within 24 hours
of the arrest (Ss 56 and 57 Cr.PC).
3. The person arrested should be permitted to meet his lawyer at any time during the
interrogation.
4. The interrogation should be conducted in a clearly identifiable place, which has been
notified for this purpose by the Government. The place must be accessible and the
relatives or friend of the person arrested must be informed of the place of interrogation
taking place.
5. The methods of interrogation must be consistent with the recognised rights to life, dignity
and liberty and right against torture and degrading treatment.
ENFORCEMENT OF GUIDELINES
1. The guidelines must be translated in as many languages as possible and distributed to
every police station. It must also be incorporated in a handbook which should be given to
every policeman.
2. Guidelines must receive maximum publicity in the print or other electronic media. It
should also be prominently displayed on notice board, in more than one language, in
every police station.
3. The police must set up a complaint redressal mechanism, which will promptly investigate
complaints of violation of guidelines and take corrective action.
4. The notice board which displays guidelines must also indicate the location of the
complaints redressal mechanism and how that body can be approached.
5. NGOs and public institutions including courts, hospitals, universities etc., must be
involved in the dissemination of these guidelines to ensure the widest possible reach.
6. The functioning of the complaint redressal mechanism must be transparent and its
reports accessible.
7. Prompt action must be taken against errant police officers for violation of the guidelines.
This should not be limited to departmental enquiries but also set in motion the criminal
justice mechanism.
8. Sensitisation and training of police officers is essential for effective implemen-tation of
the guidelines.
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5. Guidelines Relating to Administration of Polygraph Test
[Lie Detector Test]
No. 117/8/97-98
National Human Rights Commission
(Law Division-III)
S. K. Srivastava
Assistant Registrar (Law)
Sardar Patel Bhavan,
Sansad Marg,
New Delhi -110 001.
11, January, 2000
To
Chief Secretaries of States /Union Territories.
Sub: Guidelines Relating to Administration of Polygraph Test (Lie Detector Test).
Sir,
I am directed to state that the Commission in its proceeding on 12.11.1999 has considered
the Guidelines relating to Administration of Polygraph Test (Lie Detector Test) on an
accused and directed that:
“The Commission adopted the Guidelines and decided that it should be circulated to all
concerned authorities for being followed scrupulously.”
Accordingly, a copy of the above Guidelines is forwarded herewith.
You are, therefore, requested to follow the said guidelines and acknowledge the same.
Yours faithfully,
Sd/-Assistant
Registrar (Law)
Encl: As above.
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Guidelines Relating To Administration of Polygraph Test (Lie Detector Test) on
an Accused
The Commission has received complaints pertaining to the conduct of Polygraph Test (Lie
Detector Test) said to be administered under coercion and without informed consent. The
tests were conducted after the accused was allegedly administered a certain drug. As the
existing police practice in invoking Lie Detector Test is not regulated by any ‘Law’ or
subjected to any guidelines, it could tend to become an instrument to compel the accused to
be a witness against himself violating the constitutional immunity from testimonial
compulsion.
These matters concerning invasion of privacy have received anxious consideration from the
Courts (see Gomathi Vs. Vijayaraghavan (1995) Cr. L.J. 81 (Mad); Tushaar Roy Vs. Sukla
Roy (1993) Cr. L.J. 1959 (Cal); Sadashiv Vs. Nandini (1995) Cr. L.J. 4090). A suggestion for
legislative intervention was also made, in so far as matrimonial disputes were concerned.
American Courts have taken the view that such tests are routinely a part of everyday life and
upheld their consistence with due process (See Breithbaupht Vs. Abram (1957) 352 US
432). To hold that because the privilege against testimonial compulsion “protects only
against extracting from the person’s own lips” (See Blackford Vs. US (1958) 247 F (20) 745),
the life and liberty provisions are not attracted may not be wholly satisfactory. In India’s
context the immunity from invasive-ness (as aspect of Art. 21) and from self-incrimination
(Art. 20 (3)) must be read together. The general executive power cannot intrude on either
constitutional rights and liberty or, for that matter any rights of a person (See Ram Jawayya
Kapur (1955) 2 SCR 225). In the absence of a specific ‘law’, any intrusion into fundamental
rights must be struck down as constitutionally invidious ( See Ram Jawayya Kapur (1955) 2
SCR 225; Kharak Singh (1964) 1 SCR 332 at pp. 350; Bennett Coleman (1972) 2 SCR 288
at pr. 26-7; Thakur Bharat Singh (1967) 2 SCR 454 at pp. 459-62; Bishamber Dayal (1982) 1
SCC 39 at pr. 20-27; Naraindass (1974) 3 SCR at pp. 636-8; Satwant (1967) 3 SCR 525).
The lie detector test is much too invasive to admit of the argument that the authority for Lie
Detector Tests comes from the General power to interrogate and answer questions or make
statements (Ss 160-167 Cr. P.C.). However, in India we must proceed on the assumption of
constitutional invasiveness and evidentiary impermissiveness to take the view that such
holding of tests is a prerogative of the individual not an empowerment of the police. In as
much as this invasive test is not authorised by law, it must perforce be regarded as illegal
and unconstitutional unless it is voluntarily undertaken under non-coercive circumstances. If
the police action of conducting a lie detector test is not authorised by law and impermissible,
the only basis on which it could be justified is, it is volunteered. There is a distinction
between: (a) volunteering, and (b) being asked to volunteer. This distinction is of some
significance in the light of the statutory and constitutional protections available to any person.
There is a vast difference between a person saying, ‘‘I wish to take a lie detector test
because I wish to clear my name”, and a person is told by the police, “If you want to clear
your name, take a lie detector test". A still worse situation would be where the police say,
“Take a lie detector test, and we will let you go”. In the first example, the person voluntarily
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wants to take the test. It would still have to be examined whether such volunteering was
under coercive circumstances or not. In the second and third examples, the police implicitly
(in the second example) and explicitly (in the third example) link up the taking of the lie
detector test to allowing the accused to go free.
The extent and nature of the ‘self-incrimination’ is wide enough to cover the kinds of
statements that were sought to be induced. In M.P. Sharma AIR 1954 SC 300, the Supreme
Court included within the protection of the self-incrimination rule all positive volitional acts
which furnish evidence. This by itself would have made all or any interrogation impossible.
The test - as stated in Kathi Kalu Oghad (AIR 1961 SC 1808)-retains the requirement of
personal volition and states that ‘self-incrimination’ must mean conveying information based
upon the personal knowledge of the person giving information’. By either test, the
information sought to be elicited in a Lie Detector Test is information in the personal
knowledge of the accused.
The Commission, after bestowing its careful consideration on this matter of great
importance, lays down the following guidelines relating to the administration of Lie Detector
Tests:
i. No Lie Detector Tests should be administered except on the basis of consent of the
accused. An option should be given to the accused whether he wishes to avail such test.
ii. If the accused volunteers for a Lie Detector Test, he should be given access to a lawyer
and the physical, emotional and legal implication of such a test should be explained to
him by the police and his lawyer.
iii. The consent should be recorded before a Judicial Magistrate.
iv. During the hearing before the Magistrate, the person alleged to have agreed should be
duly represented by a lawyer.
v. At the hearing, the person in question should also be told in clear terms that the
statement that is made shall not be a ‘confessional’ statement to the Magistrate but will
have the status of a statement made to the police.
vi. The Magistrate shall consider all factors relating to the detention including the length of
detention and the nature of the interrogation.
vii. The actual recording of the Lie Detector Test shall be done in an independent agency
(such as a hospital) and conducted in the presence of a lawyer.
viii. A full medical and factual narration of manner of the information received must be
taken on record.
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6. Human Rights in Prisons
a) Letter to Chief Ministers/Administrators of all States/Union Territories on
mentally ill persons languishing in prisons.
Justice Ranganath Misra
Chairperson
National Human Rights Commission
11, September, 1996
My Dear Chief Minister,
It has come to the notice of the Commission that several mentally ill persons, as defined in
Section 2(1) of the Mental Health Act, 1997, have been languishing in normal jails and are
being treated at par with prisoners. The Commission has also come across cases where
such detention is not for any definite period.
The Lunacy Act, 1912 and the Lunacy Act, 1977 have been repealed by the Mental Health
Act which has come into force with effect from 1.4.1993.
The Mental Health Act dose not permit the mentally ill persons to be put into prison. The
Patna High Court has last week directed the State of Bihar to transfer mentally ill persons
languishing in the jails to the mental asylum at Ranchi.
While drawing your attention to the legal position and order of the Patna High Court, we
would like to advise that no mentally ill person should be permitted to be continued in any jail
after 31 October, 1998, and would therefore, request you to issue necessary instructions to
the Inspector General of Prisons to enforce it.
After 1st November, 1996, the Commission would start inspecting as many jails as possible
to find out if any mentally ill person is detained in such jails and invariably in every such
case, it would award compensation to the mentally ill persons or members of the family and
would require the State Government to recover the amount of such fine from the delinquent
public officer. A copy of this letter may be widely circulated to the Inspector General of
Prisons, Superintendents of every jail and members of the jail staff and other district level
officers.
With regards,
Yours sincerely,
Sd/
Ranganath Misra)
To : All the Chief Ministers/Administrators of States/UTs.
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Justice Ranganath Misra
National Human Rights Commission
Chairperson
September 25, 1996
My Dear
One of the important functions of the National Human Rights Commission, as provided
under Section 12(C) of the Protection of Human Rights Act, 1993, is to “visit under intimation
to the State Government, any jail or any other institution under the control of the State
Government, where persons are detained or lodged for purposes of treatment, reformation
or protection to study the living conditions of the inmates and make recommendations
thereon”. The Commission has visited a number of prisons all over the country and also
inquired into a large number of complaints alleging violation of human rights received from
the prisoners in several jails. The Commission feels that there is a crying need for revamping
the prison administration of the country and bring about systemic reforms. In this connection,
I would like to draw your attention towards my letter No.NHRC/ Prisons/ 96/2 dated 29.8.96
sent to you wherein I enclosed a copy of the Prison Bill prepared by us and sought your cooperation
for the enactment of a new Prison Act to replace the century old Prison Act of
1894.
I would also like to draw your attention to another matter of importance concerning prison
administration. We find that in most of the States, the post of Inspector General of Prisons is
filled up by officers either from the Indian Administrative Service or Indian Police Service.
The usual tenure of the officer is very brief, and most of them look upon their posting as
Inspector General of Prisons as an inconvenient one and look ahead for an early transfer to
other posts in the main line of administration. The result is frequent transfer of officers
appointed as Inspectors General of Prisons. Sometimes the post is also left vacant for a long
time. For qualitative improvement of prison administration in the country, we feel that the
selection of officers to head the prison administration deserves to be done carefully. An
officer of proven integrity and merit-simultaneously disciplined and yet humane - may be
selected for the post and should be continued in the post for a certain period time -say about
three years - with a view to imparting continuity and dynamism to the prison administration.
This will provide efficient and capable leadership for the prison service and help in improving
prison administration in the country.
We look forward for your favourable response.
With regards,
Yours sincerely,
Sd/-Ranganath
Misra
To : Chief Ministers of all States/UTs
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) Letter to all IG (Prisons)/Chief Secretaries of States/Administrators of Union
Territories regarding Prisoners Health Care-periodical medical examination of
undertrials/convicted prisoners in the Jail.
Lakshmi Singh
Joint Secretary
National Human Rights Commission
D.O.No.4/3/99-PRP & P
11 February, 1999
Dear
Subject: - Prisoners’ health care-periodical medical examination of undertrials/ convicted
prisoners in various jails in the country.
The Commission has taken note of the disturbing trends in the spread of contagious
diseases in the prisons. One of the sample-studies conducted by the Commission indicated
that nearly seventy-nine percent of deaths in judicial custody (other than those attributable to
custodial violence) were as a result of infection of Tuberculosis. These statistics may not be
of universal validity, yet what was poignant and pathetic was that in many cases, even at the
very first medical attention afforded to the prisoners the tubercular infection had gone
beyond the point of return for the prisoners. The over-crowding in the jails has been an
aggravating factor in the spread of contagion.
One of the remedial measures is to ensure that all the prison inmates have periodic medical
check-up particularly for their susceptibilities to infectious diseases and the first step in that
direction would necessarily be the initial medical examination of all the prison inmates either
by the prison and Government doctors and in the case of paucity or inadequacy of such
services, by enlisting the services of voluntary organizations and professional guilds such as
the Indian Medical Association. Whatever be the sources from which such medical help is
drawn, it is imperative that the State Governments and the authorities incharge of prison
administration in the States should immediately take-up and ensure the medical examination
of all the prison inmates; and where health problems are detected to afford timely and
effective medical treatment.
Kindly find enclosed proceedings of the meeting of the Commission held on 22.1.99 which
also include a proforma for health screening of prisoners on admission to jail. The
Commission accordingly requires that all State Governments and prison admin-istrators
should ensure medical examination of all the prison inmates in accordance with the attached
proforma. The Commission further requires that such medical ex-amination shall be takenup
forthwith and monthly reports of the progress be commu-nicated to the Commission.
With regards,
To : Chief Secretaries of all Sates/UTs.
Yours sincerely,
Sd/-
Lakshmi Singh)
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PROFORMA FOR HEALTH SCREENING OF PRISONERS ON ADMISSION TO
JAIL
Case No..........
Name ................................. Age ......... Sex......... Thumb impression ..........................
Father’s/Husband‘s Name......................................Occupation ....................................
Date & Time of admission in the
prison........................................................................................
Identification
marks........................................................................................................................
Previous History of illness
Are you suffering from any disease?
Yes/No
If so, the name of the disease :
Are you now taking medicines for the same?
Are you suffering from cough that has lasted for 3 weeks or more
Yes/No
History of drug abuse, if any:
Any information the prisoner may volunteer:
Physical examination:
Height.... cms. weight....... kg Last menstruation period .........
1. Paller : YES/NO 2. Lymph Mode enlargement: YES/NO
3. Clubbing: YES/NO 4. Cyanosis: YES/NO
5. lcterus: YES/NO 6. Injury, if any........................
4. Blood test for Hepatitis/STD including HIV, (with the informed consent of the prisoner
whenever required by law)
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5. Any other ............................................................................................
Systemic Examination
1. Nervous System
2. Cardio Vascular System
3. Respiratory System
4. Eye, ENT
5. Castro Intestinal system abdomen
6. Teeth & Gum
7. Urinal System
The medical examination and investigations were conducted with the consent of the prisoner
after explaining to him/her that it was necessary for diagnosis and treatment of the disease
from which he/she may be suffering.
Date of commencement of medical investigation
Date of completion of medical investigation
Medical officer
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c) Letter to Chief Justices of High Courts on undertrial prisoners.
Dr. Justice K. Ramaswamy
National Human Rights Commission
Member
December 22, 1999
Dear Brother Chief Justice,
Right to speedy trial is a facet of fair procedure guaranteed in Article 21 of the Constitution.
In Kartar Singh’s case (Constitutionality of TADA Act case), J.T. 1992(2) SC 423, the
Supreme Court held that speedy trial is a component of personal liberty. The procedural law
- if the trial is not conducted expeditiously, becomes void, violating Article 21 as was held in
Hussain Ara’s four cases in 1979. In Antulay’s case, l992(1) SCC 215, a constitution bench
directed completion of the trial within two years in cases relating to offences punishable upto
7 years, and for beyond seven years, within a period of three years. If the prosecution fails to
produce evidence before the expiry of the outer limit, the prosecution case stands closed
and the court shall proceed to the next stage of the trial and dispose it of in accordance with
law. That view was reiterated per majority even in the recent judgement of the Supreme
Court in Raj Dev Sharma II versus Bihar, 1999 (7) SCC 604 by a three-Judge bench.
In Common Cause case, 1996 (2) SCC 775 - in D.O. Sharma I’s case—it was held that the
time taken by the courts on account of their inability to carry on the day-to-day trial due to
pressure of work, will be excluded from the dead-line of two years and three years,
respectively, imposed in the aforesaid cases. In the latest Raj Dev Sharma’s case 1999 (7)
SCC 604 majority reiterated the above view.
In Common Cause II case, 1996 (4) SCC 33, the Supreme Court directed release of the
undertrial prisoners, subject to certain conditions mentioned therein. The principle laid down
in Common Cause case is not self-executory. It needs monitoring, guidance and direction to
the learned Magistrates in charge of dispensation of criminal justice system at the lower
level, before whom the undertrial prisoners are produced for extension of the period of
remand. It is common knowledge that it is the poor, the disadvantaged and the neglected
segments of the society who are unable to either furnish the bonds for release or are not
aware of the provisions to avail of judicial remedy of seeking a bail and its grant by the court.
Needless or prolonged detention not only violates the right to liberty guaranteed to every
citizen, but also amounts to blatant denial of human right of freedom of movement to these
vulnerable segments of the society who need the protection, care and consideration of law
and criminal justice dispensation system.
In this background, may I seek your indulgence to consider the above perspectives and to
set in motion appropriate directions to the Magistracy to follow up and implement the law laid
down by the Supreme Court in the Common Cause II case? For your ready reference, the
principles laid therein are deduced as set guidelines are enclosed herewith. I had a
discussion with the Hon’ble Chief Justice of Andhra Pradesh High Court, who was gracious
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enough to have them examined in consultation with brother Judges and necessary directions
issued to all the Magistrates and Sessions Judges to follow up the directions and ensure
prevention of unnecessary restriction of liberty of the under-privileged and poor undertrial
prisoners. I would request you to kindly consider for adoption and necessary directions
issued to the Magistrates and Sessions Judges within your jurisdiction to follow up and
ensure enjoyment of liberty and freedom of movement by poor undertrial prisoners.
With regards,
Yours sincerely,
Sd/-
(Dr. Justice K. Ramaswamy)
To
Chief Justices of all High Courts
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d) Letter of the Special Rapporteur to IG of Prisons
Sankar Sen
Special Rapporteur
D.O.No. 11/1/99-PRP & P
National Human Rights Commission
29.04. 1999
Dear
The problems of undertrial prisoners has now assumed an alarming dimension. Almost 80%
of prisoners in Indian jails are undertrials. The majority of undertrial prisoners are people
coming from poorer and underprivileged sections of the society with rural and agricultural
background. The Supreme Court in a memorable judgement-Common Cause (a registered
society) Vs. Union of India 1996 has given the following directions regarding the release of
undertrials on bail.
a. Undertrials accused of an offence punishable with imprisonment upto three years
and who have been in jail for a period of 6 months or more and where the trial
has been pending for atleast a year, shall be released on bail.
b. Undertrials accused of an offence punishable with imprisonment upto 5 years and
who have been in jail for a period of 6 months or more, and where the trial has
been pending for atleast two years, shall be released on bail.
c. Undertrials accused of offences punishable with imprisonment for 7 years or less
and who have been in jail for a period of one year and where the trial has been
pending for two years shall be released on bail.
d. The accused shall be discharged where the criminal proceedings relating to traffic
offence have been pending against them for more than 2 years.
e. Where an offence compoundable with the permission of the court has been
pending for more than 2 years, the court shall after hearing public prosecutor
discharge or acquit the accused.
f. Where non-congnizable and bailable offence has been pending for more than 2
years, without trial being commenced the court shall discharge the accused.
g. Where the accused is discharged of an offence punishable with the fine only and
not of recurring nature and the trial has not commenced within a year, the
accused shall be discharged.
h. Where the offence is punishable with imprisonment upto one year and the trial
has not commenced within a year, the accused shall be discharged.
i. Where an offence punishable with an imprisonment upto 3 years and has been
pending for more than 2 years the criminal courts shall discharge or acquit the
accused as the case may be and close the case.
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However, the directions of the court shall not apply to cases of offences involving
(a) corruption, misappropriation of public funds, cheating, whether under the Indian Penal
Code, Prevention of Corruption Act, 1947 or any other statute, (b) smuggling, foreign
exchange violation and offences under the Narcotics Drugs and Psychotropic Substances
Act, 1985, (c) Essential Commodities Act, 1955, Food Adulteration Act, Acts dealing with
environment or any other economic offences, (d) offences under the Arms Act, 1959,
Explosive Substances Act, 1908, Terrorists and Disruptive Activities Act, 1987, (e) offences
relating to the Army, Navy and Air Force, (f) offences against Public tranquility and (g)
offences relating to public servants, (h) offences relating to elections, (j) offences relating to
giving false evidence and offences against public justice, (k) any other type of offences
against the State, (l) offences under the taxing enactments and (m) offences of defamation
as defined in Section 499 IPC.
The Supreme Court has given further directions that the criminal courts shall try the offences
mentioned in para above on a priority basis. The High Courts are requested to issue
necessary directions in this behalf to all the criminal courts under their control and
supervision.
These directions of the Supreme Court aim at streamlining the process of grant of bail to the
undertrials and make it time- efficient. The judgement, however, does not provide for suomoto
grant of bail to the petitioners by the trial court. This implies that an application would
have to be made to move the court for grant of bail. There is also no mechanism in the
courts to automatically dispose off suitable cases. They are dependent upon filing of bail
petitions and more important on the production of prisoners in time. Your are requested to
meet the Registrar of the High Court, State Legal Aid Authorities and take measures for
release of undertrial prisoners in consonance with the Judgement of the apex court. Release
of undertrial prisoners will lessen the congestion in jail and help more efficient prison
management. The process thus needs the high degree of coordination between the
judiciary, the police and the prison administration which unfortunately is now lacking.
The majority of undertrial prisoners are people coming from poorer and underprivileged
sections of the society with rural and agricultural background.
Yours sincerely,
Sd/-
(Sankar Sen)
To
All Inspectors General of Prisons.
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e) Letter to the Chief Justices of all High Courts with regard to Human Rights
in Prisons
Justice J.S. Verma
Chairperson, (Former Chief Justice of India)
National Human Rights Commission
Sardar Patel Bhawan, Sansad Marg,
New Delhi-110001 INDIA
January 1, 2000
Dear Chief Justice,
As you are aware, one of the important functions entrusted to the National Human Rights
Commission under the Protection of Human Rights Act, 1993, is to visit the prisons, study
the conditions of the prison inmates and suggest remedial measures. During the last five
years the Members of the Commission and its senior officers have visited prisons in various
parts of the country and have been appalled by the spectacle of overcrowding, insanitary
conditions and mismanagement of prison administration. The problem is further
compounded by lack of sensitivity on the part of the prison staff to the basic human rights of
the prisoners.
The State Prison Manuals contain provisions for District and Sessions Judges to function as
ex-officio visitors to jails within their jurisdiction so as to ensure that prison inmates are not
denied certain basic minimum standards of health, hygiene and institutional treatment. The
prisoners are in judicial custody and hence it is incumbent upon the Sessions Judges to
monitor their living conditions and ensure that humane conditions prevail within the prison
walls also. Justice Krishna Iyer has aptly remarked that the prison gates are not an iron
curtain between the prisoner and human rights. In addition, the Supreme Court specifically
directed that the District and sessions Judges must visit prisons for this purpose and
consider this part of duty as an essential function attached to their office. They should make
expeditious enquiries into the grievances of the prisoners and take suitable corrective
measures.
During visits to various district prisons, the Commission ha been informed that the Sessions
Judges are not regular in visiting prisons and the District Committee headed by Sessions
Judge / District Magistrate and comprised of senior Superintendent of Police is not meeting
at regular intervals to review the conditions of the prisoners.
Indeed in most of the jails, there is a predominance of under trials. Many of them who have
committed petty offences are languishing in jails, because their cases are not being decided
early for reasons which it is not necessary to reiterate. The District Judges during their visits
can look into the problem and ensure their speedy trial. The Supreme Court in its several
judgements has drawn attention to this fact and to the attendant problems in prison
administration arising therefrom. The Supreme Court has also emphasised the need for
urgent steps to reduce their numbers by expeditious trial and thereby making speedy justice
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a facet of Article 21 of the Constitution a reality. You may consider giving appropriate
instructions to the District & Sessions Judges to take necessary steps to resolve the acute
problem which has the impact of violating a human right which is given the status of
constitutional guarantee. I would be grateful for your response in this matter.
With regards,
Yours sincerely,
Sd/-
(J.S. Verma)
To
Chief Justices of all High Courts
SOURCE: http://www.nhrc.nic.in/
IV. INTERNATIONAL MECHANISM AND PROCEDURE
1. Introduction to Possible Courses of Action
Once you have finished collecting your raw information, you will need to think about
choosing the most appropriate place to send it and how to present it in a way most likely to
obtain the result you want. This chapter will identify and evaluate the courses of action which
may be open to you, and provide some guidelines on how to make the best use of them.
Your first port of call should generally be to seek a remedy within the domestic system,
particularly where the information concerns an individual case. For practical reasons, this
handbook concentrates on obtaining remedies within the international system, but this
should not be interpreted as meaning that domestic remedies should not be used. On the
contrary, there are a number of reasons why they should be used wherever possible:
• It is important to strengthen and reinforce national institutions if long-term progress is
to be achieved in the human rights situation in a country.
• Where domestic remedies are effective, they can usually provide more immediate
and direct satisfaction to complainants than the international procedures, which can
take a long time to reach a conclusion.
• Under international law, it is considered that states should have an opportunity to
repair any human rights violation for which they are responsible before the
international bodies intervene - consequently, international procedures for individual
complaints generally require domestic remedies to have been exhausted (see
section 3.3.2.2 for an explanation of this requirement) before accepting to examine
the complaint.
It is most appropriate to take action at the international level where:
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• Domestic remedies are ineffective or unable to provide a satisfactory remedy in an
individual case.
• Your objective is to alert the international community to the human rights situation in
a country, either generally, or in relation to specific aspects of it.
1.1 Action at the international level
At the international level, the range of mechanisms from which assistance can be sought in
connection with allegations of torture and other forms of ill-treatment is very wide. The focus
of the handbook, and of this part, is those international procedures to which information can
be sent and whose job it is to comment on whether or not a state has respected its
obligations relating to torture under international law. This is because they are responsible
for supervising the implementation of the international system for the protection of human
rights - it is through them that it is possible to invoke a state's obligations under international
law in order to obtain a formal or official response to allegations of torture and obtain some
form of remedy for the violation. It is important not to forget, however, that there are also
additional sources of help to which it is possible to turn for advice, support or other forms of
assistance, particularly if you feel uncomfortable about using a formal procedure.
1.1.1 Range of international procedures
Many possibilities exist for action at the international level. There are mechanisms which
were created by the United Nations and can examine the situation of countries throughout
the world. There are others which were created within a regional organisation and can only
act in relation to states within that region. There are mechanisms which were created to
consider only matters relating to torture (torture-specific) and others which are empowered to
examine more general human rights issues, which include torture. The ways in which the
mechanisms carry out their functions can also vary quite widely from one mechanism to the
next. The best way to distinguish between the various bodies is to consider their origin (i.e.
how they were created), and their functions.
1.1.1.1 Origin of the mechanism
Not every mechanism can be used in connection with every country. The origin of the
mechanism is important because it tells you what countries it may receive allegations about.
The main distinction is between treaty bodies and non-treaty mechanisms.
• Treaty bodies are those which are created by a legally-binding agreement between a
number of states, like a contract. This type of agreement is usually known as a treaty,
but can also have other names, such as a convention, a covenant or a charter.
Treaty bodies are set up to supervise the way in which the agreement is respected
by the states which are parties to it (i.e. which have agreed to respect it). For
example, the UN Convention Against Torture sets out a number of obligations which
States Parties must respect, and it has also created a supervisory body called the
Committee Against Torture which has the task of checking that these obligations are
respected. The most important point to remember is that if you wish to send an
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allegation of torture to a treaty body, you must first make sure that the country about
which the allegation is being made is actually a party to that treaty. Because the
treaty body was created by an agreement, it cannot examine the situation of states
which have not been part of that agreement.
• Non-treaty mechanisms are those which are not set up for the specific purpose of
supervising a particular treaty. They might be a political body made up of state
representatives, like the UN Commission on Human Rights, or they might be
mechanisms which are set up by a resolution (formal decision, usually adopted by
vote) of such political bodies. This means that the mechanism then automatically has
the power to examine the situation of all states which are members of the relevant
inter-governmental body, without any need for those states to give their written
agreement. For example, the UN Commission on Human Rights created the Special
Rapporteur on Torture by a resolution. This means that the Special Rapporteur can
examine and receive allegations about any state which is a member of the UN. As
you can see, non-treaty bodies can receive allegations from a wider range of states
because they are not limited to those that have signed a special agreement.
The origin of a mechanism can also limit the states under its supervision in a different way.
Where a mechanism is created in the context of an inter-governmental organisation, it is
normally intended to apply only to states which are members of that organisation. This
applies both to treaty and non-treaty mechanisms. This means that:
• Where an inter-governmental organisation is regional, this will as a general rule limit
the work of the mechanism to states from that region. For example, only OAS
member states can become party to the American Convention on Human Rights and
accept the supervision of the Inter-American Court of Human Rights. The only
exception would be if the states which created the mechanism agree to make it
possible for states from outside the organisation or region to become parties, as may
soon be the case with the European Convention for the Prevention of Torture .
• Where a mechanism is created in the context of a world-wide organisation, like the
UN, it is open to any member state of the organisation throughout the world. In the
case of the UN, in practice this means virtually every country in the world.
1.1.1.2 Functions of the mechanism
Many of the bodies described in this handbook have more than one function. In particular,
you should not think that they only receive individual allegations. Many of the mechanisms
are also designed to address the wider situation, ultimately with a view to having preventive
effects. It is important to understand the differences between the various functions because
each responds to different forms of information and provides different types of remedies.
This means that you need to make sure that, on the one hand, your information is in a form
to which the mechanism can respond and that, on the other, the mechanism is able to
provide you with the kind of remedy you want. The principal functions of the mechanisms
can be broadly divided into two types: reporting functions and complaint procedures.
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Reporting functions include:
• Consideration of state reports: Certain treaty bodies receive and examine reports
prepared by States Parties about the situation in their country and the manner in
which they have sought to give effect to their treaty obligations. The treaty body then
provides its comments on the report and makes recommendations for improvement.
These comments and recommendations are usually public.
• Monitoring: Certain treaty and non-treaty mechanisms may engage in monitoring,
often from a particular perspective. This could be either the world-wide or regional
situation in connection with a particular theme e.g. torture or violence against women,
or the general human rights situation in a specific country. It normally involves
receiving and analyzing information about both individual and general allegations in
order to report on the situation.
• Fact-finding: Certain treaty and non-treaty mechanisms may also carry out a factfinding
role and will visit countries, either on a periodic basis, or on an ad hoc basis in
cases which are considered a particular cause for concern.
Complaint procedures involve:
• Receiving and processing individual complaints: This is a function carried out
only by treaty bodies. Unlike reporting, in which individual allegations may also be
received but are used essentially as a way of understanding a more general
situation, a complaint procedure is a judicial or litigation-style process. It focuses on
the individual allegation itself and aims to establish whether or not a state has
violated the rights granted to an individual or individuals under the relevant treaty. It
is like bringing a case to court, and is a formal process with a set procedure which
must be followed.
• Receiving and processing inter-state complaints: Under this procedure, states
may make complaints against other states alleging breaches of their human rights
obligations or commitments. Such a function can be carried out by both treaty and
non-treaty bodies. This type of complaint procedure will not be addressed in this
handbook because it does not generally invite NGO involvement.
Table 1: Summary of International Mechanisms - By Origin and Function
Mechanism Origin Functions
Treat
y
Regional
Nontreaty
Worldwide
Reporting
Individual Complaints
Committee
Against
Torture
State
Reports
Monito
ring
Factfinding
Optiona
l
Y UN Y ?* Y Y
Human Rights Y UN Y Y
Compulsor
y
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Committee
Committee on
the Rights of
the Child
Committee on
the Elimination
of
Discrimination
Against
Women
Committee on
the Elimination
of Racial
Discrimination
Special
Rapporteurs of
the UN
Commission
on Human
Rights
Y UN Y ?*
Y UN Y ?*
Y UN Y Y
Y UN Y Y
1503
Procedure
European
Court of
Human Rights
European
Committee for
the Prevention
of Torture
Inter-American
Commission
on Human
Rights
Inter-American
Court of
Human Rights
African
Commission
on Human and
Peoples'
Rights
Y
Y
Y
Y
Y
Y UN Y
Council
of
Europe
Council
of
Europe
Organis
ation of
America
n States
Organis
ation of
America
n States
Organis
ation of
African
Unity
Y
Y
Y
Y Y Y
Y Y Y Y
Note 1: It is possible that a protocol to the European Convention for the Prevention of Torture will be
adopted in the near future which will make it possible for non-member states of the Council of Europe
to become parties to the convention.
Note ?*: These functions will or may become available to these mechanisms in the near future. See
mechanism-specific discussions for details.
Y
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1.1.2 How to select an international procedure
In order to choose among the wide range of procedures which exist at the international level,
you need to consider:
• AVAILABILITY: which mechanisms are open to you?
• SUITABILITY: which mechanisms are best suited to your objectives?
1.1.2.1 Availability: which mechanisms are open to you?
This will depend on the country about which you have information.
As previously discussed, the UN non-treaty mechanisms will be applicable to countries all
over the world without any need for specific consent. However, both UN and regional bodies
which have been created by treaty are, as a rule, applicable only to those states which have
agreed to be bound by the treaty. In the case of regional bodies, this will normally be limited
to states from the region.
In addition, some of the treaties which set up individual complaint procedures make these
procedures optional for States Parties. In such cases, in order for the individual complaint
procedure to be available in relation to a particular state, it is not sufficient for that state to
become a party to the treaty, but it must also expressly consent to the procedure. This
means that a state can be a party to a treaty which sets up an individual complaint
procedure, but not allow those complaints against itself.
Furthermore, at the time of becoming a party to a treaty, states often have the opportunity to
make a reservation to the treaty. Making a reservation means that the state has not
accepted the exact terms of the treaty, but has modified one or more of its provisions to suit
itself, as a condition of accepting the treaty. You should always check, not only if a state is a
party to a treaty, but also if it has made any reservations to it, in case it is relevant to your
case.
This means that, in order to determine which mechanisms will accept information about a
particular country, you need to ask the following questions:
• Was the mechanism created by a specific treaty?
If it was:
• Is the country a party to this treaty? If yes, the mechanism will accept information
about it. If no, the mechanism will not normally be able to respond to information
about it.
• If there is an optional individual complaint procedure, has the country accepted this
procedure? If yes, the mechanism can examine individual complaints about it. If no,
the mechanism can still receive information about the country in the exercise of its
other functions, but cannot activate the individual complaint procedure.
• Has the state made any reservations to the treaty which might modify its application
in your case?
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If it was not: This will normally mean that it was set up by an inter-governmental
organisation.
• Is the country a member of this inter-governmental organisation? If yes, the
mechanism will accept information about it. Remember that United Nations nontreaty
mechanisms will in principle accept information about any country in the world.
1.1.2.2 Suitability: which mechanisms are most suited to your objectives?
Once you have identified the mechanisms which are open to you, you will need to decide
what you would like to achieve by submitting the information, in order to select the
mechanism(s) most likely to fulfil your objectives. You could consider the following as a
general guide:
Table 2: Suitability of Types of Mechanisms to Possible Objectives
Possible objective
Type of mechanism most likely to achieve
this
General Objectives:
Draw attention to a situation/establish a pattern Any reporting mechanism or complaint
procedure
Seek positive changes in a general situation Any reporting mechanism or complaint
procedure
Combat impunity Any reporting mechanism or complaint
procedure
Individual Objectives:
A finding of violation
Holding a perpetrator to account
Any complaint procedure
Any complaint procedure; reporting mechanisms
which address individual allegations
Reparation Complaint procedures which can award
reparations
Preventing deportation of an individual to a
country where there is a substantial belief that he
or she will be at risk of torture
Complaint procedures which may order or
recommend provisional measures; reporting
mechanisms which address individual
allegations
2. What you should know about international reporting mechanisms and
how to use them
The term 'reporting mechanism'is used throughout the text to refer to:
Any international mechanism which receives and/or seeks out information in
order to report or comment on whether states are respecting their obligations
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under international human rights law. The information it receives can concern
both individual and general allegations, but the ultimate objective is to obtain
an accurate picture of the general situation and make recommendations.
The principal objective of reporting mechanisms is to monitor and assess the extent to
which states are respecting their obligations under international human rights law.
They can:
• Receive and gather information from states and third parties in order to report on the
situation in a state (Monitoring)
• Examine and comment on reports produced by the states themselves, and make
recommendations for improvement (Consideration of state reports)
• Carry out fact-finding visits to states (Fact-finding)
They cannot:
• Adopt legally-binding decisions
• Award reparation to individuals
General practical information relating to each of these functions is considered below. There
is a lot of variation in the methods and powers of the different mechanisms, however, and
any peculiarities will be noted when the relevant mechanisms are discussed in sections 4
and 5.
2.1 What kind of general characteristics should your communication have?
Reporting mechanisms are swamped with information from a multitude of sources, much of
which are of dubious quality or lack the precise detail to be useful. The best way to ensure
that your information stands out from the rest is to make sure that it is:
• Accessible
• Balanced
• Credible
• Detailed
2.1.1 Accessible
You can make your submission accessible by paying attention to the language used and
the length of the submission.
Language:
• Most of the international organisations make a distinction between official languages
and working languages. As a rule, although communications may be made in official
languages, most of the staff of the organisation will be able to function only in the
working languages. At the same time, many of the organisations have very limited
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esources, which means that translation is not always a priority, particularly if there is
no indication of the value of the communication.
If you wish your communication to receive the best consideration possible, you
should do your best to submit your communication in a working language (these will
be specified in relation to each organisation in sections 4 and 5 if possible - this does
not mean that you have to translate every supporting document, but it does mean
that your covering letter should be in one of these languages, and that it should
clearly indicate the content of each of the attached documents. If you cannot do this,
you should at least make sure that a short summary is provided in a working
language which indicates the essential elements of the information or complaint.
What is essential will depend on the procedure, but as a general rule you should
indicate:
1. Who the communication is addressed to
e.g. Special Rapporteur on Torture
e.g. Committee Against Torture
2. Who you are
e.g. NGO working with street children
e.g. NGO working with asylum seekers
3. Which country the allegation is about
4. The purpose or content of your information and if urgent action is required
e.g. 10 allegations of torture of street children, indicating pattern of abuse
against street children by police. Treatment includes severe beatings, rape
and mock executions.
e.g. Violation of Article 3 of CAT. Mrs. Y to be deported to country X where
likely to be tortured. Was severely tortured 8 months ago before leaving
country (including electric shocks and severe beatings resulting in a fractured
skull - medical certificate enclosed) and brother still in the country recently
arrested and questioned about the applicant's whereabouts. Deportation due
on ……. (date) - URGENT.
• You should not assume any specialised knowledge on the part of the staff receiving
your submission - it is important that they understand what you are discussing, and
terms which may seem simple to you may not be widely understood outside of your
country. Make sure that you always use simple language and explain specialised
terms. In particular, you should avoid the use of abbreviations and acronyms unless
you explain them.
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Length of submissions:
• There is generally no required length for submissions, but you should bear in mind
limited staff resources and time when preparing your communication. This means not
making it any longer than it really needs to be, and if it exceeds 8 or 10 pages, you
should provide a summary of the essential points so that it is easy for the member of
staff to see if it is useful.
2.1.2 Balanced and Credible
You can make your submission balanced and credible by introducing yourself, being
objective and avoiding sensational claims.
Introduce yourself:
• The response you obtain to your submission will depend very much on the
impression given of your organisation, its reliability and your motives in sending the
information. It is far better to address these questions directly rather than leave them
up to the imagination of the staff member reading the communication. It is important
to create a good reputation for yourself and your organisation so that, over time, you
will become a trusted source.
If you have not previously introduced yourself to an organisation, you can start by
explaining your mandate - you can do this in the communication itself or, even better,
you can include a copy of your statutes or of an annual report that gives a good
indication of your activities. If you are affiliated with an international NGO, you should
say so - this will provide an easy way of checking out your credentials. Make sure to
explain not only your activities, but also your purpose and objectives. If you are a
politically-oriented organisation, say so - this will help to place your information in
context and also show that you have nothing to hide. Explain your methods of work -
how is your information collected? Is it first-hand information or has it been obtained
by word of mouth or from press reports? The aim is to include any information which
will help the mechanism to form an accurate impression of your organisation and the
quality of your information.
Be objective:
• Always make sure that your presentation of the information is balanced. An objective,
balanced view of a situation will make your communication far more credible, and
show that you are interested in presenting the real situation and not just one
perspective. While it is normal for information to appear somewhat one-sided if it is
trying to establish a pattern of violation, it is important to present it in an objective
context. Explain the background carefully, so that the information cannot be
perceived as having been taken out of context (see section 2.2.1 for an indication of
the kind of details you might include). This inspires confidence in the material and
means that the next time you send information, it will be recognized as coming from
an organisation which has proved reliable in the past.
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Avoid sensational claims:
• Using sensational language or dramatic descriptions is likely to be detrimental to your
submission. The international mechanisms receive many communications which are
full of sensational claims and contain no facts or substance. A balanced, informative
communication supported by examples will stand out from the rest of the many
unsupported allegations and will be received with far more attention.
2.1.3 Detailed
Making your submission detailed is not about being lengthy - it is about being informative.
You should provide sufficient information for an international body to be able to reach its own
conclusions about whether torture or ill-treatment has occurred, while at the same time
remaining concise and as brief as possible.
You need to make sure that the detail you include is relevant detail, that is to say, that it
helps to support your allegation. Extensive materials in which an allegation is deeply buried
and needs to be extracted makes the international bodies' work more difficult, as do large
amounts of general information with little precise detail. Concentrate on including as many
details as possible which relate to the allegations themselves, and keep the general material
brief, but informative - it needs to be there to set the context, but it should not take over or be
the focus of the communication.
2.2 Submitting information to a body engaged in monitoring: what should your
communication include?
The content of your communication will vary somewhat according to what you are trying to
prove. However, it is possible to give the following guidelines on what to include.
2.2.1 Sending general information to a monitoring body
When sending general information to a reporting mechanism, you should aim to set the
context and establish patterns.
Set the context: It is very difficult for any of the mechanisms to get a clear picture of the
problems in a country or to make useful recommendations if they do not have a good grasp
of the context in which these problems are taking place. An objective summary of the
general situation in the country is very valuable. This does not mean making a few sweeping
statements accusing the state of widespread violations of human rights. It means explaining
briefly the conditions present in the country which might affect the state's respect for its
obligations to prevent torture. Relevant factors might include:
• Main political groups and their respective standing, including any controversy about
the coming to power of the current Government and principal rivalries
• Any tensions along ethnic, social or religious lines
• The existence of an armed conflict and the parties involved
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• The structure and powers of the security forces and military, particularly if the military
are in control
• Relevant traditional beliefs, practices and customs
• The legal framework, in particular any laws granting special powers, e.g. anti-terrorist
laws, and other relevant legislation
The objective is to include the facts which you think an outsider might need in order to
understand what is going on in the country.
Establish patterns: In contrast to individual allegations, each of which is concerned with the
outcome in a specific case, general information should paint an overall picture of the practice
of torture in a country, or identify a specific aspect of that practice.
In order to establish a pattern, it is not enough to:
• List a few individual cases
• Make unsupported statements about the practice of torture in a country
Instead you should:
• Use as many examples as possible
• Analyse the individual allegations in order to identify patterns.
E.g. if you find that a lot of your allegations are about the use of electric shocks
throughout a country, or about the rape of women taken into custody in a particular
police establishment, you could suggest that the allegations, taken as a whole,
support a pattern - the use of electric shocks as a common method of torture, or the
rape of women in a specific police station.
Other apparent patterns which might be of relevance could include a high occurrence
of torture and other forms of ill-treatment among suspects detained under a particular
law permitting extended incommunicado detention, a high incidence of torture of
detainees from a particular ethnic or social group, consistent failure to prosecute
officials accused of torture, a high rate of unexplained deaths in custody, or
widespread reports of the torture of women or children.
The point is to show that certain forms of torture, or behaviour facilitating torture, are
not limited to a few isolated incidents, but occur on a regular basis.
When presenting your findings about patterns you have identified, it is best to:
• First, summarize all of the patterns you have identified
• Next, take each proposition one by one, and explain it in general terms
• After each proposition, provide as many examples as possible to support your
statement
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Table 3: Checklist For Submitting General Information To A Reporting
Mechanism
CHECKLIST: Submitting general information to a reporting mechanism
Does your submission include • A brief introduction to the objectives and working
methods of your organisation?
• A summary of the context in which the allegations
are set, particularly the legal framework?
• A presentation of any identifiable patterns of
violation?
• As many detailed examples as possible? (see
section 2.2.2 for guidelines on the information to
include on each individual allegation)
• Any available supporting documentation?
A list of local organizations or persons which can
be contacted to seek information about the
relevant country?
2.2.2 Sending an individual allegation to a monitoring body
If you wish to send information about an individual allegation to a reporting mechanism,
you should aim to include the following as a minimum wherever possible:
• Name of victim: This should include both first and last name unless it is the local
custom to have only one name. The objective is identification - if the name is very
common, other identifying details should be given, such as address or place of
residence, age, sex or profession. Such details are always valuable and should be
given if known. Most of the mechanisms cannot take action on behalf of an
unidentified individual, which normally means a named individual. The only exception
where names might not be required would be where a clearly identifiable group is
involved - e.g. a group of 50 students arrested after demonstrating outside the
mayor's office of City X on 19 November 1999 - but names should always be
included if available.
• Date of incident: This should be as precise as possible, and include both the date of
apprehension by the state officials and of any incident(s) of torture if these are
different. Dates are important as they help to understand the sequence of events. If
you know the time of day (exact time, or whether it took place in the morning or
evening) this can also be helpful.
• Place of incident: This should include the name of the town, village or local district,
and the name of the state or region where applicable. Make sure that you include the
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place of any incident of torture or other ill-treatment, which may mean more than one
place if there have been several incidents, as well as the place of arrest if this is
different.
• Alleged perpetrator(s): This should include the name and rank of the perpetrator if
known, but at least the branch of the security forces or military involved, or the police
station with which the perpetrator is associated. It is often possible to identify the
group involved by the uniform worn. Remember that the perpetrator must have a
connection with the state - in an area where apprehensions by plainclothes police or
military are known to be common, it may not be necessary to name the perpetrators,
as it will be possible to draw a strong inference from the surrounding circumstances.
• Details of treatment: Avoid using the term 'torture' or 'tortured' without describing
the treatment involved. Not every incident of unpleasant treatment will be serious
enough to constitute torture in legal terms, even though you may feel very strongly
about it. The best approach is to describe the treatment in as much detail as
possible. In this way, the international body will be able to determine for itself if
torture in the legal sense has taken place. Where the torture was physical, the details
should include descriptions of the treatment involved, any instruments used, the parts
of the body to which the treatment was applied, and any injuries suffered. For
example, instead of saying 'Mr. X was beaten', which could mean just about
anything, it is much more informative to say 'Mr. X was severely beaten in the face
and head with a metal bar, resulting in a fractured skull and a perforated eardrum.'
Where the torture was psychological, you should describe what it consisted of, how
the victim felt while it was going on and subsequently, and provide details of any way
in which the victim's behaviour or mental state has been affected by the treatment
e.g. if he is suffering from nightmares or paranoia.
While there is a minimum amount of detail which should be present, there is really no
maximum to the amount of relevant details which can be included. What does relevant
mean? Basically, it means anything which helps the international bodies to understand what
happened and makes it possible for them to decide if a state is respecting its obligations. As
states have obligations to investigate and remedy incidents of torture, this includes
information about what happened after the incident. Details which might be relevant and
should be included if known include:
Age, sex and profession of the victim - it is particularly useful to mention whether the
person is male or female, as it can be difficult for someone unfamiliar with the local
language to determine this.
Identity card number
Address or place of residence
Race or ethnic group
Any injuries or long-term effects suffered
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Was the victim granted access to a lawyer and/or doctor during his detention?
Did the victim make a complaint about the incident of torture?
If a complaint was made, what have the state authorities done in response? Has there
been an investigation or prosecution? If there has been a prosecution, was any
penalty imposed?
Table 4: Checklist For Submitting An Individual Allegation To A Reporting
Mechanism
CHECKLIST: Submitting an individual allegation to a reporting mechanism
Does your submission
include:
A brief introduction to the objectives and working methods of your
organisation?
As many details as possible, but at least:
name or other identifying characteristic of victim
date and place of incident(s)
alleged perpetrator(s)
details of treatment (See above for an explanation of what these
should include)
Any available supporting documentation?
A clear indication that the case is urgent if you are requesting
urgent action?
A clear indication of any details which are confidential?
2.3 Submitting information in the context of the state reporting procedure
2.3.1 How does the state reporting procedure work?
The purpose of the state reporting procedure is to help treaty bodies (this currently applies
only to the United Nations treaty committees) to gain a clear picture of the extent to which
States Parties are respecting their treaty obligations, by asking states to describe how they
are implementing those obligations in practice. States have an obligation to submit reports
on a regular basis, although many delay the submission of these reports for many months or
years. Once a treaty body has received a state report, it must examine it carefully in order to
identify any areas of concern. The report is considered in a formal meeting, which the public
may attend. During this meeting, the state whose report is being considered is given an
opportunity to introduce its report, and will normally be asked by the committee to answer
further questions raised by the report. Finally, the committee will adopt its conclusions and
make recommendations to the state on ways to better implement its obligations.
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2.3.2 What can you achieve by submitting information in the context of the
state reporting procedure?
The reports received by the treaty bodies are prepared by the states themselves. This does
not necessarily mean that they are inaccurate, but it does mean that they represent the
official view of a situation. It is important to make sure that when the treaty bodies reach their
conclusions and make recommendations, they do so on the basis of information which
accurately reflects the situation in a country. Submitting reliable information can help the
treaty bodies to:
reach accurate conclusions about a country situation
ask the right questions when examining the state report
make useful recommendations appropriate to the situation
Consideration of a state report by one of the treaty bodies is a significant event which
receives a lot of publicity. Your submission can help to ensure that the conclusions which
receive this publicity are reliable and draw attention to the real areas of concern. In addition,
if you have used your submission to make constructive suggestions for improvement, they
may well influence the committee's recommendations.
2.3.3 What should an NGO report in the context of the state reporting
procedure contain?
You should follow the general guidelines set out in section 2.2.1, for submitting general
information to a reporting mechanism. In addition, however, as the state reporting procedure
involves an assessment by a treaty body of the extent to which obligations under a particular
treaty are being respected, you should be guided by the provisions of that particular treaty
and previous findings in relation to the state, as well as the purpose of the procedure.
When preparing a submission, therefore, you should bear in mind the following:
As the reference point used by the committee in its examination will be the treaty itself, it
makes sense to construct your report around the provisions of the treaty. Pick out
those about which you have information, and explain how they are being
implemented in the country. This ensures that you are addressing issues which the
committee will be most interested in, and it helps you to identify the points which you
should concentrate on. As the state will certainly provide information about the formal
legal situation, what legislation exists, etc., the big question which you will need to
answer will, as a general rule, be how this legislation actually works in practice.
If the report being submitted is not the first one submitted by that particular state, you
should also refer to the committee's previous conclusions on that state in order to
help you identify the areas of concern to the committee. You should comment on the
extent to which the committee's recommendations have been implemented since
consideration of the last report.
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If there is time between publication of the state report and its consideration, it can be
helpful to comment on the content of the state report itself, whether you agree or
disagree with it (always give reasons), or whether there is any additional information
which should be brought to the attention of the committee. This also helps you to
focus on the points which will be most useful to the committee. Make sure that your
report is objective and does not concentrate only on the negative aspects - if what
the Government has stated is true, you should recognize it, and recognize also those
measures it may have taken which have had some success in improving the
situation. A balanced approach will strengthen your credibility, and also allow the
committee to see what measures actually appear to work in practice, which will assist
it in making recommendations in other cases.
Unless you can do so very briefly, you should not attempt to address each and every
point made by the Government or contained in the treaty, but concentrate instead on
the most important issues. Remember that it is best to be concise whenever
possible.
Try to give as many precise examples and statistics as possible. The idea is for you to
provide the raw information so that the committee is in a position to reach its own
conclusions. This means that you should avoid making unsupported statements. For
example, you should avoid stating that something is ineffective without giving specific
examples of why this is so.
It helps to set your allegations in context. See section 2.2.1, for suggestions on how to
describe the general background in a country.
Try to suggest some questions which the committee might like to ask when considering
the state report. This can help the committee to identify important areas of concern
which the state report may not have elaborated upon.
Finally, don't forget to make constructive suggestions for improvement. You are often in
a better position than the committee to get a sense of what measures might have a
positive effect on the general situation, and this insight can be very useful to the
committee. In addition, it helps to show that your motives are not merely to challenge
the Government, but genuinely to seek to improve the general situation.
2.3.4 Practical tips for submitting information in the context of the state
reporting procedure
Any State Party to the human rights treaties setting up a state reporting procedure has a
duty to submit these reports - check if your state is a party.
To find out when your country is expected to submit a report, you should contact the
Secretariat in Geneva or check the website to find out which reports are due to be
considered at the next session of the committee. This is normally decided at the end
of the previous session.
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In recent years, the number of states submitting reports has begun to decrease. If you
are aware of serious problems in a country, it is worth alerting the committees to the
facts even where a country has not yet submitted a report. This should not replace
the sending of information close to the time of consideration of a report, however -
the treaty bodies receive so much information that they can forget about information
received a long time previously.
Once you know that your state report will be considered at the next session, get started
as early as possible so that you have plenty of time to prepare your submission.
The state report should become available to the public six weeks before the Committee
meets - you can contact the Secretariat if you would like a copy, or check if it has
been posted on the website. You should not wait until the state report becomes
available to start preparing your submission, as you need plenty of time to research
and prepare a good report.
The committees receive a lot of information. Preparing submissions jointly with other
NGOs is a good way of reducing duplication and being more comprehensive. The
committees generally prefer to receive a single well-thought out and comprehensive
submission than a dozen statements repeating the same points and leaving out
others.
If you have the opportunity to go to Geneva to deliver your submission in person, you
should do so - again, this will help to distinguish it from the rest of the information
received, and it means that you can draw attention to the most important parts of
your submission. It can also help to create an impression of you and your
organisation, hopefully a good one.
2.4 Submitting information to a body engaged in fact-finding
Information to a body engaged in fact-finding can be provided either in advance of or during
a fact-finding visit. This will affect the focus which your information should have.
2.4.1 Submitting information in advance of a fact-finding visit
In advance of a fact-finding visit, you should provide information which helps the body to
plan and prepare for its visit. The overriding consideration must be that fact-finding visits are
usually too short to examine every aspect of the situation in a country. This requires those
engaged in the planning and preparation for a visit to be selective. Your information should
help the fact-finding body to identify the aspects of the situation which are most important,
and the activities which it can most usefully pursue during the visit.
Your information should help the body to plan and prepare for its visit by:
Identifying the areas of concern which need to be examined most closely
Identifying the areas, towns and specific institutions which should be visited (those about
which a lot of allegations are received and which appear to have the most serious
problems)
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Including as much detail as possible relating to the layout of the institutions which should
be visited and the location of rooms or areas within the institution where torture most
frequently takes place. Sometimes it may even be possible to construct a plan of the
layout or the route to the interrogation rooms on the basis of information received
from victims, particularly where the same description is given by more than one
victim, e.g. They took me there through a door behind the main reception desk in the
police station which led downstairs - we went down two floors, and turned left down a
long corridor. The room where I was interrogated was the last door on the right at the
end of the corridor.
Explaining the social and legal context of a country, in particular drawing attention to any
specific laws which appear to contribute to the problem, e.g. legislation which permits
extended incommunicado detention or which places restrictions on the possibility of
prosecuting state officials, or legislation or case-law permitting the use of confessions
obtained through torture as evidence in court.
Identifying any state officials or parliamentary representatives with whom it would be
particularly important to meet: either because they have themselves been linked with
involvement in ill-treatment (e.g. a state doctor known to have issued false medical
certificates concealing the presence of injuries sustained in police custody; a public
prosecutor known not to open cases concerning allegations of ill-treatment against
public officials), or because of any attempts on their part to address problems of illtreatment
(e.g. members of an independent national human rights commission).
Providing a list of contacts with which the body might wish to organize meetings during
the visit, e.g. national human rights NGO representatives (including those engaged in
advocacy, reporting and rehabilitation), professional associations such as medical or
lawyers' associations, individual lawyers familiar with the domestic system or active
in the representation of victims, victim-support organizations.
Informing the body if you would be able to arrange for it to meet with alleged victims of
torture during the visit.
2.4.2 Submitting information during a fact-finding visit
During the visit itself, if you have not already provided information to the fact-finding body in
advance, you should follow the guidelines suggested previously as well as the additional
considerations below. You yourself need to be very selective at this stage. The fact-finding
body will have a very tight schedule and its meetings with NGOs will be relatively short.
The purpose of a fact-finding visit is to collect FACTS. At this stage, assuming the factfinding
body has been able to examine general information in advance of the visit, it is
probably most interested in three things:
Concrete examples of what really happens in practice.
Meeting alleged victims in order to record personal testimony - it is probably best for
this to happen separately to your initial informational meeting (though this will depend
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on the schedule of the visit) and to take place in a location which is not intimidating
for the victims. You should discuss this with the representatives of the fact-finding
body if it has not been arranged in advance. Remember to bring to the meeting
photocopies of any documentation which supports the victims' allegations, such as
medical reports or judicial decisions.
Obtaining the names and locations of individuals who have very recently been taken
into custody, particularly if they are being or have been interrogated, and which it
may be possible to visit in detention (either at the place of police custody, or at a
remand prison to which they may have been transferred following interrogation). It
would also be useful to identify individuals who have just been released from
custody and claim to have been recently tortured. Where an individual currently in
custody has a legal representative, it would be useful to provide the contact details of
the representative as well.
If you are presenting information in person, you should:
Make sure to address the important points first in case you run out of time.
Listen carefully to any questions you are asked and answer them precisely, even if this
means that you are not able to say everything you have prepared - the questions you
are asked will be the ones which the visiting delegation most needs answers to.
Prepare a written submission as well, and bring it with you to the meeting to back up
your presentation - if you run out of time, this should provide all the necessary
information, and it will help the representatives of the fact-finding body to remember
you.
Bring copies of any documentation which explains who you are and what you do, e.g.
activity report.
Avoid using the meeting to make political statements - if you do this, you will run out of
time to provide the fact-finding body with the information it really needs.
3. What you should know about international complaint procedures and how to
use them
The term 'complaint procedure'is used throughout the text to refer to:
A formal judicial-style process in which an individual or group of individuals
make a complaint to an international judicial body alleging that their individual
rights have been violated in a specific case. A complaint under such a
procedure may also be referred to as an application, a petition or a
communication.
International complaint mechanisms are designed to address individual cases of violation by
states of their obligations under human rights law, rather than to examine a general human
rights situation. They function in a very similar manner to domestic legal proceedings, and
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are accompanied by more formal requirements than reporting procedures. As a rule, they
are not intended to serve as a first resort, but will only accept complaints where it has not
proved possible to obtain a remedy at the domestic level (where domestic remedies have
been 'exhausted' – see section 3.3.2.2. The decisions adopted in the context of international
complaint procedures are generally binding on states, but can be difficult to enforce.
The following information applies to all individual complaint procedures as a general rule.
Any exceptions are noted when the relevant mechanism is discussed in sections 4 and 5.
3.1 What can you seek to achieve by using individual complaint procedures?
Complaint procedures can:
Address individual grievances
Create publicity for individual cases
Order or recommend provisional measures, including the non-expulsion of an individual
to a country where he or she is at risk of torture
Engage in certain forms of fact-finding and investigation
Result in legally-binding decisions
Make findings of violation in individual cases
Award reparation to individuals
Complaint procedures cannot:
Adequately address a generalized problem
3.2 What kind of complaints can individual complaint procedures examine?
Individual complaint procedures can examine complaints which:
Concern an alleged violation of a provision of the relevant treaty
Where the violation has allegedly been committed by a state which has accepted the
individual complaint procedure (and the competence of the implementing body
to examine individual complaints if consent to this is required separately, e.g. the
competence of the Inter-American Court of Human Rights must be accepted
expressly even though the individual complaint procedure under the American
Convention on Human Rights applies to all parties)
Where the violation has allegedly been committed against an individual or group of
individuals under the state's jurisdiction and
Where the complaint is brought by the victim, his or her family or an authorized
representative (which can include an NGO).
Violation:
A state can be found to have violated its human rights obligations not only through its
actions (e.g. the deliberate practice of torture), but also through its omissions (e.g.
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failure to take effective steps to prevent torture from occurring/failure to prosecute
perpetrators/failure to investigate allegations). This means that an alleged violation
can cover more than just the incident of torture itself, and could also be demonstrated
by the circumstances surrounding the incident.
It should be noted that while some of the treaties considered in this handbook are
torture-specific, others are more general in nature and cover a wide range of human
rights. Complaints brought under a general treaty can allege violations of more than
one right. For example, if an individual was detained arbitrarily and died in custody as
a result of torture, it would be possible to allege violations of the right to liberty and
security of person and the right to life as well as the right not to be tortured.
Jurisdiction:
Under human rights law, states undertake to respect and protect the rights of all
individuals under their jurisdiction. This basically means all individuals over which the
state can exercise control. This includes all those within the state's territory (including
foreigners, not just nationals of the state), but can also include those affected by the
acts of state officials abroad, for example those affected by the acts of a state's
armed forces in another territory.
3.3 How do individual complaint procedures work?
3.3.1 Basic chronology
All individual complaint procedures are based on the same main chronological
steps:
Receipt of a complaint
Initial consideration to make sure that:
it concerns a State Party to the relevant convention which has accepted the
individual complaint procedure
the facts complained of relate to the subject-matter of that convention and
there is a genuine possibility that a violation may have occurred (i.e. the claim
is not absurd)
Assessment of the admissibility of the complaint, including an opportunity for both
parties to submit their observations (this step is sometimes combined with the next
one - you will be informed if this is the case)
Consideration of the merits of the complaint, including an opportunity for both parties
to submit their arguments, and (depending on its exact powers) for the
international body to collect information about the case which will help it to reach a
decision. This may include oral and/or written pleadings, fact-finding, and
consideration of expert evidence or amicus curiae briefs.
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A decision by the body on whether or not a violation has occurred, and (depending
on the body's exact powers) on what, if any, remedies should be awarded
At any stage of the proceedings, most of the bodies which receive individual complaints
can:
Request or order the taking of provisional measures
Make themselves available to the parties in order to seek a friendly settlement
(agreement on a solution which is satisfactory to both parties and which makes it
unnecessary to continue with the case)
Some of these steps need further explanation.
3.3.2 Admissibility
3.3.2.1 What is admissibility?
The admissibility stage works as a kind of threshold - if a case is declared admissible, it
moves on to an examination of the merits, but if it is declared inadmissible, the case is over.
When a judicial body examines the admissibility of an application, it is basically asking itself
if it is allowed to consider the case. It does not examine whether or not the facts reveal a
violation of international human rights law (this is what happens at the merits stage) -
instead, it is asking if there are reasons which prevent it from looking at the case at all.
3.3.2.2 Why might a complaint be declared inadmissible?
The reasons ('grounds') for which an international body will declare a case inadmissible will
be indicated when considering that mechanism, but a number of them are common to most
of the individual complaint procedures. Most of them are procedural grounds, which means
that they do not relate to the facts of the case, but to the way in which the application has
been made. The principal grounds of inadmissibility are:
The application is anonymous
The applicant is not the victim and has not obtained authorization from the victim or
the victim's family to make a complaint
The application is about events which occurred before the treaty entered into force
for the state concerned. For example, under Article 27 of the Convention Against
Torture, that convention comes into force (becomes applicable) 30 days after a state
has ratified it. This means that if State X ratifies the convention (and accepts the
individual complaint procedure) on 31 March 2000, it will come into force for that
state on 30 April 2000. The Committee Against Torture can then only examine
complaints which are about events which occurred on or after 30 April 2000.
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The time-limit for submission of an application has expired. As a general rule, the timelimit
begins to run from the time a final official decision is taken in the case. This
could mean the date of the incident where no remedy has been sought (but see
below for exhaustion of domestic remedies), but in general it will mean the date of a
decision not to prosecute, a court judgment, the lodging of a petition by the victim to
which no response has been received, or some other such decision which represents
the final step in the process of seeking a remedy within the domestic system.
The communication is incompatible with the provisions of the relevant convention
The application is considered manifestly ill-founded or an abuse of the right of
submission. This is the only ground of inadmissibility on which the judicial bodies can
refer to the facts of a case. It is assessed on a case by case basis, and is applied
where it is considered that the facts could not possibly reveal the violation alleged,
therefore being clearly an allegation without any basis for which the right of
submission should not have been used.
The facts of the case have already been examined under this or another procedure of
international settlement
Domestic remedies have not been exhausted
The most common ground for declaring a complaint inadmissible is the non-exhaustion of
domestic remedies, but it is also the most difficult to be certain about. It therefore needs to
be examined in more detail.
=> What does 'exhaustion of domestic remedies' mean?
Basically, it means that if a victim of a human rights violation wants to bring an individual
case before an international body, he or she must first have tried to obtain a remedy from the
national authorities. It must be shown that the state was given an opportunity to remedy the
case itself before resorting to an international body. This reflects the fact that states are not
considered to have violated their human rights obligations if they provide genuine and
effective remedies for the victims of actions of state officials, in recognition that certain
individuals may engage in unacceptable behaviour without the approval of their
governments.
The international bodies do recognize, however, that in many countries, remedies may be
non-existent or illusory. They have therefore developed rules about the characteristics which
remedies should have, the way in which the remedies have to be exhausted, and special
circumstances where it might not be necessary to exhaust them.
=> What kind of remedies must a complainant have exhausted?
A complainant must have exhausted any remedy (whether judicial or administrative in
nature) which is:
Available: the remedies exist and the victim (or someone else on his or her behalf) is
able to use them without restrictions;
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Effective: it is possible for the remedy to be used successfully;
Adequate: the remedy is able to provide suitable redress for the complaint - for example,
if an individual was about to be deported, a remedy which could not suspend the
deportation would not provide suitable redress.
If the existing domestic remedies do not fulfil these criteria, a victim may not have to exhaust
them before complaining to an international body. However, the complainant needs to be
able to show that the remedies do not fulfil these criteria in practice, not merely in the
opinion of the victim or that of his or her legal representative. For example, it might be
necessary to be able to show that no person alleging torture who has ever used a particular
remedy has ever been granted compensation. If there is any doubt as to whether a remedy
is effective, the complainant should at least be able to show that an attempt was made to
use it. Furthermore, if the remedy has become unavailable through the complainant's own
fault (e.g. where the complainant has failed to respect the deadline for making an appeal, so
that the appeal procedure becomes unavailable), this would not normally be accepted as a
justification for non-exhaustion of the remedy.
If a complainant wishes to argue that a particular remedy did not have to be exhausted
because it is unavailable, ineffective or inadequate, the procedure is as follows:
The complainant states that the remedy did not have to be exhausted because it is
ineffective (or unavailable or inadequate) - this does not yet have to be proven
The state must then show that the remedy is effective
If the state is able to establish this, then the complainant must either demonstrate that he
or she did exhaust the remedy, or that it could not have been effective in the
specific case even if it may be effective in general.
=> How must the remedy have been exhausted?
The subject of the complaint argued before the international body must have been referred
to in the complaint before the domestic authorities. The reason for this is to make sure that
the state has been given an opportunity to provide redress for the specific complaint which is
being brought before the international body.
An example might be where a complainant has brought a domestic case seeking
compensation for an act of torture, during which he or she did not question the nature of the
police investigation into the complaint at any stage. If the court refuses to award
compensation on the ground that the evidence presented was insufficient to establish that an
act of torture occurred, and the complainant claims before the Committee Against Torture
that there has been a violation of the state's obligation to ensure that there is a prompt and
impartial investigation of allegations of torture, it is quite possible that this complaint will not
be accepted because it was never raised before the domestic authorities - although it may
be possible to complain about the failure to provide compensation.
=> When might it not be necessary to exhaust domestic remedies?
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In special circumstances, the international body may find that domestic remedies did not
have to be exhausted even where they were available, and potentially effective and
adequate. Such special circumstances include:
Where application of the remedies is unreasonably prolonged, e.g. where court
proceedings or the investigation of allegations are excessively long, not due to any
fault of the complainant
Where no independent judiciary exists
Where there is a general climate of intimidation such that it is not possible to obtain legal
representation
Each case will be considered on its facts, and grounds which have been rejected in one
case have sometimes been accepted in another, so do not hesitate to be creative in your
arguments. One word of warning, however: ignorance of the existence of available remedies
is unlikely to be accepted as a justification for non-exhaustion. You should make sure that
you are fully-informed of the potential domestic remedies available in any case.
3.3.3 Amicus curiae briefs/Third party interventions
'Amicus curiae'means 'friend of the court', and the purpose of such a brief (submission) is to
assist the judicial body by providing information which will help it to reach a decision. It is a
practice which has not yet been accepted in the context of the UN mechanisms, which does
not necessarily mean that it will not be developed in the future, but has been resorted to on a
fairly regular basis by the European and Inter-American Courts of Human Rights.
An amicus brief is a written submission made by an interested third-party to the proceedings
i.e. by an individual, an organisation, or even another state which is neither the complainant,
the defendant state, or in the case of an advisory opinion, the requesting state or organ, but
who it is felt can contribute something of importance to the proceedings. In general, these
interventions will either be requested explicitly by the court, or permission to submit a brief
will be sought by the interested third party, which the court may either accept or refuse.
The content of the brief itself will vary from case to case, although it will normally address
general issues and situations rather than something specific to an individual complainant. A
request for permission ('leave') to submit an amicus brief, however, should normally contain
the following elements:
Explain briefly who you are and what your organisation does
Explain why you or your organisation are particularly qualified to make an intervention
e.g. any special experience in the relevant field or in a particular country; a particular
project carried out on a relevant topic etc.
Explain what your submission will add to the proceedings i.e. summarize briefly what you
wish to say and explain how this will be helpful to the court
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3.3.4 Provisional measures
Where an individual complaint procedure allows for the adoption of provisional measures,
this makes it possible, at any stage of the proceedings, for the relevant body to request or
order the State Party to take steps to avoid possible irreparable damage to persons in
relation with the case. Adopting provisional measures has no bearing on the outcome of the
case - it does not imply that the body has reached a decision on either admissibility or
merits, but is merely a precaution to give it time to deliberate.
This feature is widely used in cases involving the imminent expulsion of an individual to a
country where he or she is believed to be at risk of torture. There are three criteria which
must be fulfilled when making an application for provisional measures in such cases:
Arguments concerning the state's obligation of non-expulsion must have been made
before the domestic tribunals.
The complaint must show that the individual is personally at risk of being subjected to
torture. It would be insufficient to argue that people in general are tortured in the
country in question - it must be shown that there are grounds to believe that this
particular individual would be tortured there.
It must be shown that there is a continuing risk which exists in the present. It would not
normally be enough to show that an individual was tortured some time in the past. It
would need to be shown that the risk subsists, for example because the name of
this individual is on a list of targeted persons, or because family members still living
in the country have recently been tortured, or perhaps because this individual is a
particularly well-known opposition leader.
3.4 What should an application under an individual complaint procedure
contain?
You need to think in terms of two components to your communication. The first is your cover
letter, which must include a certain number of details. If these are not provided, you will be
asked to supplement your application before it can be processed any further. The second is
the supporting documentation.
Your cover letter should include:
Name, nationality, occupation, postal address and signature of the complainant, or the
name and signature of any legal representative(s) or of any other person authorized
by the alleged victim to act on his or her behalf. If you have a means of verifying the
complainant's identity (e.g. national identity card), a copy of this should be included
as well.
Name of the State Party against which the communication is directed
Provision or provisions of the convention alleged to have been violated
An account of the act or acts alleged (See section 2.2.2 for an indication of the details
which should be included)
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An indication that the state is responsible either through action or inaction
Information on the efforts made to exhaust domestic remedies and their outcomes,
including the judgment, whether there was an appeal and the date of any final
judgment, or information on the impossibility of exhausting them
Indication of the extent to which the same matter is being examined under another
procedure of international investigation
An indication of any part of the communication (including the complainant's name) which
should remain confidential
Always try to include as much supporting documentation (see also Chapter II, section 5)
with your communication as possible. This could include:
A letter of authorization - this must contain the signature of the victim, or else explain
why the authorization was given by the victim's family instead (This must always be
included if the person sending the communication is neither the victim nor his or her
family)
Any petitions or complaints made to the authorities
Any domestic judicial and administrative decisions in the case - including decisions at all
levels of the judiciary (first instance, appeal, supreme court), details of any penalties
awarded against the perpetrator(s), any administrative decisions such as those of a
police complaint authority, decisions of the prosecutor not to prosecute or otherwise
pursue a case, decisions of incompetence to examine a case
Victim statements
Witness statements
Medical reports or certificates, including both physical and psychological assessments, if
they exist.
Autopsy reports
Photographs
Media reports
General information, e.g. NGO reports, indicating that there is a practice of torture
Always send copies of the documents, not the originals, as they will not be returned to
you.
Official documents can generally be submitted in their original language, but you should
indicate what their relevance is - if possible, provide a short summary in a working language
of, for example, the result of the judgment, or of the injuries recorded in the medical
certificate.
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3.5 Practical tips for using individual complaint procedures
Always do your best to respect the deadlines given to you by the international bodies - if
you know that you will not be able to respect a deadline, you should always ask for
an extension in plenty of time. Most of the international bodies quite understanding
about the need for extensions but will quickly grow impatient if you do not keep them
informed.
Always state clearly which parts of the communication, if any, are confidential.
Always state CLEARLY on the front of your communication if urgent measures are
required.
All of the international bodies have adopted 'Rules of Procedure' or 'Rules of the Court'
which set out in great detail how they function and what measures they can take.
They are usually quite technical, but they are the best source to consult if you want
the answer to a very specific question about the procedure.
If you are acting as a legal representative in the context of an individual complaint
procedure, you must ensure that you remain in contact with the complainant at all
times - it is often necessary to contact complainants for information requested by the
international body at very short notice, and they should also be kept informed of the
progress of their case.
4. The Mechanisms and Procedures: United Nations
4.1 Introduction to the United Nations system
The United Nations human rights mechanisms are all based at and run from the Office of the
High Commissioner for Human Rights (OHCHR) at the UN Office in Geneva. There are two
general points of which you should be aware if you wish to submit information to the UN
mechanisms. One relates to languages, the other to distribution.
Languages: The UN has six official languages (English, French, Spanish, Russian, Chinese
and Arabic), but only three working languages (English, French and Spanish) and, in
practice, the most widely understood language within the OHCHR is English. The OHCHR,
like many international organizations, has very limited resources. See section 2.2.1, for
suggestions concerning the language of submission of your communication in such
circumstances.
It is worth knowing, also, that the UN has complicated rules about the translation of official
documents which mean that in general a report will not be made public until it has been
translated into all the official languages. This can sometimes create lengthy delays, and is
often the reason for the failure of a document to appear in advance of the Commission on
Human Rights sessions.
Distribution: If you want your communication to be sent to more than one procedure at the
OHCHR, the most reliable approach is to send one copy to each yourself. There are two
reasons for this: 1) like any large organisation, it can sometimes happen that information is
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not passed on from one procedure to another within the OHCHR; and 2) you will usually
need to emphasize different points for the different procedures.
If you do not have the resources to send more than one copy, you should mark very clearly
who you wish to receive the information, in order to guarantee that it is distributed to all of
the procedures you have chosen. This will be particularly relevant where you want the
information to be sent to several Special Rapporteurs (see section 4.2.1.2.1). Some
organizations who submit information to the OHCHR on a regular basis have prepared a
standard form listing all the available procedures, and mark the ones which they would like
to contact in any particular case.
4.2 Reporting mechanisms within the United Nations system
4.2.1 The United Nations Non-Treaty Procedures
The two principal bodies responsible for questions relating to human rights within the UN
system are the Commission on Human Rights and the Sub-Commission on the Promotion
and Protection of Human Rights. One of the ways in which they carry out their tasks is to
create and supervise subsidiary procedures which assist them by carrying out studies,
drafting and engaging in monitoring. Such subsidiary procedures usually report to the
Commission or Sub-Commission on their activities. The procedures which follow below are
of this type, created by the Commission on Human Rights, and dependent on it and the Sub-
Commission for the purpose of any enforcement.
The Commission and Sub-Commission are both bodies which are especially suited to
lobbying. In both cases, individual members or Member States can have a significant impact
on the matters considered during their sessions, and lobbying can influence the issues which
they are willing to support. This is a very effective way of drawing attention to human rights
violations in a country. Only NGOs with consultative status have direct access to the
Commission and Sub-Commission, but some of those are willing to assist other NGOs to
attend sessions.
Table 5: Basic Facts: UN Commission on Human Rights
BASIC FACTS ABOUT: The UN Commission on Human Rights
Origin:
How was it created?
By two 1946 resolutions of the UN
Economic and Social Council
When did it become operational? 1947
Composition:
Purpose:
How many persons is it
composed of?
Are these persons independent
experts or state representatives?
General objective
The diplomatic representatives of 53
States
State representatives
To consider questions relating to
human rights, both in relation to
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Member States and from a general
perspective, and to adopt measures
with a view to improving the situation of
human rights across the world.
Table 6: Basic Facts: UN Sub-Commission on the Promotion and Protection of
Human Rights
BASIC FACTS ABOUT: The UN Sub-Commission on the Promotion and Protection of
Human Rights (formerly known as the Sub-Commission on the Prevention of
Discrimination and the Protection of Minorities)
Origin:
How was it created?
By a 1947 UN Commission on Human
Rights resolution under the authority
of the Economic and Social Council
When did it become operational? 1947
Composition:
How many persons is it composed
of?
Are these persons independent
experts or state representatives?
26
State representatives
Purpose:
General objective To undertake studies, make
recommendations and draft standards
relating to human rights, for the
purpose of referring them to the
Commission on Human Rights for
further consideration and possible
adoption.
4.2.1.1 The 1503 Procedure
4.2.1.1.1 How does the 1503 Procedure work?
Note: The 1503 procedure is currently undergoing review, and it is possible that
significant changes may be introduced in the near future.
The 1503 procedure takes its name from the number of the Commission on Human Rights
resolution which created it. Its purpose is to examine complaints of gross violations of
human rights in a country in order to identify patterns of violation. It is not the
responsibility of a special body, but is implemented instead by the Sub-Commission on the
Promotion and Protection of Human Rights and the Commission on Human Rights. The
most notable characteristic of the procedure is that it is confidential and those who submit
information are not informed of the outcome.
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Table 7: Basic Chronology: 1503 Procedure
BASIC CHRONOLOGY OF: 1503 Procedure
A communication is received.
IF ELIGIBLE for consideration (e.g. not
being considered under a public
procedure of the Commission on
Human Rights), the complaint is
transmitted to the Government in
question which is asked to comment.
IF INELIGIBLE - goes no further.
July: Examination of complaints and
replies by a five-member Working
Group of the Sub-Commission (WG
on Communications). Communications
which "appear to reveal a consistent
pattern" of violations are transmitted
to the Sub-Commission.
If does not appear to reveal a
consistent pattern of violations, either
dropped or kept pending until the
following year
August: Review by the Sub-
Commission of communications and
replies transmitted to it by the WG on
Communications. If appear to reveal a
'situation', sent to the Commission
on Human Rights.
If does not appear to reveal a
'situation', either dropped or kept
pending until the following year
February/March: Consideration of the
complaints and replies by a Working
Group of the Commission on Human
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Rights (WG on Situations) prior to the
Commission session. Its task is to
produce recommendations to the
Commission on a course of action.
March/April: During its session, the
Commission on Human Rights
considers the situations referred to it in
private meetings, with the exception
that governments are invited to be
present for consideration of their
'situation'.
The countries discussed are named, as
are those who have been dropped. This
means that, by process of elimination,
there is public notice of those states
kept under consideration. A situation
can sometimes be made public and
become the subject of open discussion
in the Commission.
Table 8: Basic Facts: 1503 Procedure
BASIC FACTS ABOUT: The 1503 Procedure
Origin:
How was it created?
When did it become
operational?
By a 1970 resolution of the UN Economic
and Social Council
1972
Composition:
The 1503 Procedure is implemented by the Sub-Commission on the
Promotion and Protection of Human Rights and the UN Commission on
Human Rights
Purpose:
General objective
Confidential examination of complaints of
gross violations of human rights in a
country in order to identify patterns of
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violations.
Functions
Monitoring
4.2.1.1.2 What can you achieve by submitting information to the 1503
Procedure?
The effectiveness of the 1503 Procedure is clearly handicapped by its confidential nature.
However, the practice, which the Commission on Human Rights has developed, of
announcing the names of the states under consideration, and indicating the ones which have
been dropped from consideration, goes some way towards improving this. It means at least
that the fact that a state is under consideration becomes public knowledge.
Even within the constraints of the confidential procedure, a state can be made to account for
and respond to allegations. As an incidental result of the procedure, the mere transmission
of a complaint to a Government may motivate it to investigate and rectify the situation
complained of, or may prompt it to suspend or terminate a practice, in order to avoid drawing
attention to itself and discourage referral of the complaint to the Sub-Commission. For those
complaints and replies which do make their way past the Sub-Commission, the Commission
identifies issues of concern during its consideration of 'situations', and might ask the states in
question to make improvements. It might request answers to specific questions. The
Commission has the power to initiate a study or to set up an ad-hoc investigatory body with
the express consent of the Government concerned but, over the years, it has developed its
own ways of dealing with serious cases by appointing an independent expert who carries out
field missions and submits a confidential report to the Commission at its next session.
In exceptionally serious cases, the Commission on Human Rights may choose to transfer
the situation to a public procedure. This may include the appointment of a Special
Rapporteur. (See section 4.2.1.2)
The 1503 Procedure can be used to:
Raise awareness of a serious situation of gross violations of human rights, at least within
the Commission on Human Rights
Make suggestions for ways to seek improvements to such a situation
It is not suitable if you wish to:
Obtain an immediate remedy for an individual.
Receive feedback about your allegations. You will only receive an acknowledgement that
your complaint has been dealt with under the procedure.
4.2.1.1.3 What should a communication to the 1503 Procedure contain?
A communication to the 1503 Procedure must:
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Be addressed to the UN, or any of its bodies or staff members. In other words, it does
not specifically need to be addressed to the 1503 procedure, but must at least be
requesting action by the UN.
A communication to the 1503 Procedure must not:
Be anonymous. The name will be deleted before the communication is transmitted to the
State unless the writer has no objection to his or her name being divulged.
Contain abusive language.
Be merely politically motivated or an opportunity to express propaganda, but should be
the expression of a genuine grievance.
The 1503 procedure is designed to identify and follow up on "situations which appear to
reveal a consistent pattern of gross and reliably attested violations of human rights".
This means that the following considerations should be taken into account when preparing a
communication under 1503:
The objective of such a communication is to draw attention to a situation, rather than to
an individual case, and should help to establish a pattern of violations. This means
that it is very helpful for individual cases to be compiled into one document rather
than submitted one by one, and although an individual case combined with others
can initiate consideration of a 'situation', it will rarely be sufficient on its own.
The evidence should relate to gross violations of human rights (which includes torture).
The evidence should be consistent over time and as between different sources of
information.
The evidence of violation must be reliable. This means that you should avoid
contradictions, provide evidence to support your allegations, and avoid vagueness.
When setting out your account of each allegation, you should follow the guidelines set out in
section 2.2.2, for the content of a standard communication as much as possible, but in
addition, you should:
Explain why you think there has been a violation and why you think the facts reveal a
consistent pattern of gross violations
Provide as much supporting evidence as possible
Explain if any domestic remedies have been sought and what was the result, including
copies of court judgments if relevant - if no domestic remedies have been sought,
reasons should be given for this.
Include any suggestions you might have for an appropriate course of action, e.g. the
appointment of a Special Rapporteur, or an investigation, or simply action by the UN
to end the violations.
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4.2.1.1.4 Specific tips
Who will be informed of the submission/identity of the source?
The name of the author of the communication will be deleted for transmission to the
Government unless the author has no objection to his or her name being divulged.
The confidentiality of the procedure means that no case under consideration is ever
made public.
Will you receive any feedback about your submission?
As the procedure is confidential, you will not receive any feedback about the content
of your submission or of any action taken. You will, however, receive an
acknowledgement that the submission has been dealt with under the procedure.
If you want your communication to be considered at the next session of the Sub-
Commission Working Group in July, you should make sure that it reaches the
OHCHR by mid-April. Otherwise it will not be considered until the following July.
The 1503 procedure accepts communications by email, which the Committee Against
Torture and the Human Rights Committee do not.
You should note that:
Complaints will not be accepted if they concern
a state:
Which is being considered under a public
procedure of the Commission on Human Rights.
Which has accepted the right of individual
petition under the ICCPR, the CAT, or the
CERD, and the complaint relates to an individual
violation of a right which is protected under one
of those instruments.
Complaints will be accepted if they
concern a state:
Which has accepted the right of
individual petition under the ICCPR, the
CAT, or the CERD, but the complaint
relates to general information about the
state rather than an individual
complaint.
4.2.1.2 The Special Procedures of the UN Commission on Human Rights
The special procedureq of the UN Commission on Human Rights are set up to monitor either
specific subject-areas on a world-wide scale, or particular countries in relation to the full
range of human rights. They are most commonly known as special rapporteurs or working
groups, but other names include independent experts and special representatives. They are
created by resolution in response to situations which are considered to be of sufficient
concern to require an in-depth study. The procedures report publicly to the Commission on
Human Rights each year, and some also report to the UN General Assembly.
Each procedure has its own slightly different working methods, but they are appointed in the
same way, the basic considerations are the same with respect to preparing a
communication, and all of the general principles discussed above in relation to writing to UN
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mechanisms also apply. The one you are most likely to wish to use in the context of torture
allegations is the Special Rapporteur on Torture, who will therefore be used as the basic
example. It is important to remember, however, that he is only one of a number of special
procedures to which allegations of torture may be sent.
4.2.1.2.1 Thematic Rapporteurs and Working Groups
All thematic procedures should be approached in a similar way to that described below in
relation to the Special Rapporteur on Torture. The important point to remember is that the
different thematic mechanisms are not mutually exclusive, and may make either joint or
separate interventions in connection with the same allegation.
In general, where your allegation concerns treatment which appears to amount to torture or
ill-treatment, you should send it to the Special Rapporteur on Torture, but where the facts
reveal other possible human rights abuses as well, you should also try to send it to all other
relevant special procedures, or to indicate on your letter to which special procedures you
would like it distributed. Action by more than one rapporteur or working group will often carry
more weight and is likely to influence a state even more than where only one procedure
expresses concern.
An example of an allegation which could be distributed to more than one procedure would be
the violent arrest and detention of a female journalist by state officials on account of her
journalistic activities, including rape and beating with truncheons at the time of arrest.
Depending on the degree of detail available and the particular circumstances, this could
potentially motivate action by the Special Rapporteurs on Torture, Violence Against Women
and Freedom of Expression, as well as the Working Group on Arbitrary Detention.
It is also possible that a case on which the Special Rapporteur on Torture decides he cannot
take action is one which another special procedure can in fact pursue. It is important not to
focus exclusively on one procedure where others may also be competent. For example,
where the treatment experienced by a detainee is not considered severe enough for the
Special Rapporteur on Torture to intervene, the facts may still reveal a case of arbitrary
detention which the Working Group on Arbitrary Detention can follow up. As the Special
Rapporteur on Torture must decide each case on its own facts, it is difficult to predict with
certainty if he will be able to take action in a particular case - it is therefore better to
maximise the chance that the allegation will be followed up by making sure that it reaches
any procedure which may be competent to do so, rather than limiting the communication to
one mechanism.
As the thematic procedures are dependent on the Commission on Human Rights for their
mandates, it is possible for a particular Special Rapporteur or Working Group to be
discontinued or a new one created from one year to the next The table on the following page
sets out the relevant thematic procedures in existence at the time of writing, along with any
particular points of note.
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Table 9: Relevant Thematic Procedures of the UN Commission on Human
Rights
Thematic Procedure: Comments:
WG on arbitrary
detention
WG on enforced or
involuntary
disappearances
SR on extra-judicial,
summary or arbitrary
executions
SR on the promotion
and protection of the
right to freedom of
opinion and
expression
You must explain why you think the detention is arbitrary. The
WG interprets this as meaning detention which 1) does not have a
legal basis; 2) is a response to the exercise of fundamental rights,
such as freedom of expression (e.g. the arrest of a journalist for
the exercise of his profession); or 3) is rendered arbitrary because
due process guarantees are not observed (e.g. if someone is not
brought promptly before a judge). It is not enough to consider that
the detention is 'unfair'. The WG will not normally examine a case
once the individual has been released, unless it concerns a
question of principle.
The WG acts only in clearly identified individual cases. If the
person or organisation submitting the information is not a relative
but is acting directly or indirectly upon the family's request, he or it
is required to maintain contact with the family at all times as any
replies received are for the information of the relatives only. You
should indicate if you wish your communication to be confidential.
The SR can take action in cases where the following result from
the actions of state officials or groups co-operating with or
tolerated by the Government: 1) the death penalty, where there
has been an unfair trial, a breach of right to appeal, or it involves a
minor, a mentally retarded or insane person, a pregnant woman or
a recent mother; 2) death threats or imminent risk of extra-judicial
execution; 3) deaths in custody owing to torture, neglect, use of
force, or life-threatening conditions of detention; 4) deaths
resulting from unnecessary or disproportionate use of force; 5)
deaths in violation of ILAC; 6) expulsion to a country where there
is a risk to life; 7) genocide; 8) a breach of the obligation to
investigate, bring perpetrators to justice and provide adequate
compensation. You should indicate if the information is
confidential.
The SR's areas of interest include: persons exercising/promoting
the exercise of the right, including professionals in the field of
information; political opposition parties and trade union activists;
the media (print and broadcast), including any threats to their
independence; publishers and performers in other media; human
rights defenders; obstacles to women's right to be heard;
obstacles to access to information. You should indicate if you wish
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your communication to be confidential.
SR on the
independence of
judges and lawyers
SR on the question of
torture
SR on violence
against women
Information can be received about judges, lawyers and court
officials. The SR is essentially concerned with safeguards and the
proper functioning of the justice system.
See below.
The SR examines cases of violence against women on account
of their gender - your communication must indicate why you
believe that the woman involved was targeted because of her
gender. A special feature of this mandate is that it looks at
violence not only by state officials, but also where it is condoned
by the state in the community and within the family. With respect
to general information, you should note that the SR is particularly
interested in examples of good practice which can be used as a
basis for recommendations in other states. Communications are
confidential.
Other relevant thematic procedures are:
SR on the sale of children, child prostitution and child pornography; SRSG on children in
armed conflict; SRSG on internally displaced persons; SR on the human rights of migrants;
SR on contemporary forms of racism, racial discrimination, xenophobia and related
intolerance; SR on the question of religious intolerance.
KEY: SR = Special Rapporteur; SRSG = Special Representative of the UN Secretary-
General; WG = Working Group
4.2.1.2.2 Special Rapporteur on Torture
Table 10: Basic Facts: UN Special Rapporteur on Torture
BASIC FACTS ABOUT: The UN Special Rapporteur On Torture
Origin:
Composition:
How was it created?
When did it become
operational?
How many persons is it
composed of?
Are these persons
independent experts or state
representatives?
By a resolution of the UN Commission on
Human Rights
1985
1
Independent expert
Purpose: General objective To monitor and report to the Commission
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on Human Rights on the practice of torture
world-wide
Functions
Monitoring
Fact-finding
4.2.1.2.2.1 How does the Special Rapporteur on Torture work?
The job of the Special Rapporteur is to present to the Commission on Human Rights as
accurate a picture as possible of the practice of torture throughout the world. In order to do
this, he relies on information received from a variety of sources, including NGOs, individuals
and governments themselves. On the basis of this information he:
engages governments in dialogue about credible allegations which are brought to his
attention
carries out fact-finding visits
Dialogue:
The Special Rapporteur's dialogue with a Government can begin in one of two ways. If he
believes that allegations he has received are credible, he will either transmit an urgent
appeal or raise the allegation in a standard communication.
The urgent appeal procedure is designed to respond urgently to information reporting that an
individual may be at risk of torture and is used to prevent possible incidents of torture. It will
therefore be used only where information is very recent. It is a non-accusatory procedure,
which means that it merely asks the Government to take steps to make sure that the person
is not tortured, without adopting any position on whether or not the fear of torture might be
justified.
Standard communications are transmitted to governments on a periodic basis and contain
both allegations concerning individual cases (individual allegations) and those concerning
general trends, patterns and special factors contributing to the practice of torture in a country
(general allegations).
These communications are transmitted to the Government against which the allegations
have been made, in order to give that Government an opportunity to comment on them.
Depending on the response received from the Government, the Special Rapporteur may
inquire further or make recommendations. All communications sent and received throughout
the year are referred to in an annual report, along with further recommendations and general
comments as appropriate, including recommendations about measures which should be
taken in order to eradicate torture.
Fact-finding:
The Special Rapporteur on Torture also carries out fact-finding visits to obtain first-hand
information. He does not have a right to visit any country of his choice, but must first obtain
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an invitation from the Government to carry out a visit. During the visit, the Special
Rapporteur meets with Government officials, NGO representatives and alleged victims, as
well as visiting places of detention such as prisons and police stations. His objective is to get
a good sense of what the actual situation on the ground is like. Following the visit, he
produces a report in which he presents the conclusions he has reached about the scope of
the problem, or lack of it, in that country, and makes recommendations about any measures
which could be taken to improve the situation.
4.2.1.2.2.2 What can you achieve by submitting information to the Special
Rapporteur on Torture?
The power of the Special Rapporteur lies with the Commission on Human Rights, and the
public nature of the procedure. His conclusions are not legally binding and he has no powers
of enforcement. Nonetheless, not many states are immune to public condemnation, and the
publicity of his findings creates pressure for states to co-operate by introducing reforms or
otherwise implementing his recommendations.
If you are seeking action in relation to a general situation, he can be used to:
Publicize the practice of torture in a country, including any official tolerance of such a
practice
Make recommendations to governments about improvements which should be made
Request a fact-finding visit in order to draw public attention to a specific situation
If you are seeking action in relation to an individual case, he can be used to:
Publicize individual incidents of torture
Make recommendations to governments in relation to individual incidents of torture,
including recommending the prosecution of perpetrators
Seek to prevent the torture of individuals who are considered at risk, e.g. by requesting
that an individual not be held incommunicado, or be granted urgent medical
treatment
Seek to prevent the deportation of an individual to a country where there is a substantial
belief that he or she will be at risk of torture
He cannot:
Visit countries without the consent of the Government in question
Adopt legally-binding decisions in individual cases
Enforce the recommendations he makes to governments
Award reparation to individuals
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4.2.1.2.2.3 What should a communication to the Special Rapporteur on Torture
contain?
If you would like the Special Rapporteur to take action concerning a non-urgent
individual incident of torture, you should follow the guidelines set out in section
2.2.2 for the content of a standard communication.
If you would like the Special Rapporteur to use the urgent appeal procedure, you should
follow the guidelines mentioned above as much as possible, but in addition, bear in
mind that:
=> where torture has not yet occurred, the relevant date, time and location will
generally be those of the taking into custody
=> you must show that there is a risk that torture may occur. This means that you
need to emphasize the factors which show that this risk exists: e.g. the
incommunicado or unacknowledged nature of the person's detention; the fact that
this same person was tortured when arrested on a previous occasion; knowledge
that persons arrested by this particular branch of the police are usually tortured, or
that members of a particular group to which this person belongs are often tortured
when arrested.
There are no precise guidelines for submitting information for the Special Rapporteur to
use in his general allegations. General allegations are those which are not limited to
the case of one individual, or a single incident. They are, however, usually based on
a collection of individual incidents. They are used to identify patterns of violation
on the basis of consistent reports, and to express concern about specific factors
facilitating the practice of torture in a country. Examples of the subjects of general
allegations include:
=> Widespread use of a particular method of torture e.g. electric shocks
=> A law permitting the extended use of fetters on prisoners
=> A law permitting incommunicado detention for a long period
=> Consistent reports that persons prosecuted for torture are never convicted
=> Consistent reports that a specific police station or branch of the security forces
practices torture
=> Consistent reports that members of a particular ethnic group are more likely to be
tortured than others
=> Consistent reports that prisoners with life-threatening illnesses are refused
medical treatment
As you can see, the most important factor will be to establish a pattern. See section
2.2.1 for suggestions on how to do this. The more cases you can collect to support
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your general allegations the better, as they show that the practices you have
identified are not merely isolated incidents, but are serious and widespread.
4.2.1.2.2.4 Specific Tips
Who will be informed of the submission/identity of the source?
In order for the Special Rapporteur to take action in an individual case, it is
necessary to transmit the name of the alleged victim or victims to the Government
concerned. The name of the alleged victim will also become known to the public
once it is recorded in the annual report of the Special Rapporteur. If you specify that
you do not wish the name or names to be made known to the Government, it will not
be possible to investigate the case itself, but it may provide a basis for general
allegations in combination with other information. The name of the source of the
allegation is never revealed, either in the communication to the Government, or in the
annual report.
Will you receive any feedback about your submission?
You will not receive any acknowledgement of receipt of your submission. If your
allegations are transmitted to the Government, any reply received from the
Government will normally be sent to you in order to give you an opportunity to
comment on its content. All cases which are transmitted to governments are
summarised in the Special Rapporteur's annual report to the Commission on Human
Rights, so this will also tell you if any action was taken on the basis of your
allegations.
Part of the Special Rapporteur on Torture's job is to identify and monitor the ill-treatment
of specific groups of persons. In recent years, he has focused particularly on the illtreatment
of children, women and human rights defenders. If you have information
concerning any of these categories, or other identifiable groups, it would be important
to send it to him.
4.2.1.2.3 Country Rapporteurs
In addition to thematic rapporteurs and working groups, the Commission on Human Rights
also appoints country-specific rapporteurs (or independent experts or special
representatives) whose task is to report on the full range of human rights, including torture
and inhuman treatment, in the specific country for which they are responsible. In general,
such rapporteurs will be appointed in relation to countries which have particularly serious
human rights situations, including those caused by war or internal conflict. The singling out
of a country for such scrutiny is inevitably a politically sensitive matter, however, and there
must be sufficient agreement among states at the Commission on Human Rights for a
country-specific rapporteur to be created.
Like the thematic rapporteurs, the objective of country-specific rapporteurs is to paint an
accurate picture of a situation, but instead of it being a world-wide portrait of a specific
phenomenon, it should be a far more comprehensive report on the human rights situation in
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a single country. Allegations of torture and inhuman treatment are of major relevance to such
a rapporteur, who needs to be able to report on the phenomenon in the context of his or her
country report. Where a special rapporteur exists for the country about which you wish to
submit an allegation of torture, therefore, he or she should be included on the list of
procedures to which the allegation should be circulated. So, for example, if the arrest and
detention of the female journalist mentioned previously took place in a country for which
there is a special rapporteur, e.g. Myanmar or Equatorial Guinea or Iran, he or she should
also receive the information.
At the time of writing, country-specific mandates existed in relation to:
Table 11: Country Rapporteurs of the UN Commission on Human Rights (1999)
Afghanistan (SR)
Burundi
(SR)
Cambodia (SRSG)
Cyprus
(SG)
Democratic Republic of
Congo
(SR)
East Timor (SG)
Equatorial
(SRCHR)
Former
Kosovo
Haiti
Guinea
Yugoslavia:
(SG)
(IE)
Iran, Islamic Republic of
(SRCHR)
Iraq
(SR)
Myanmar (SR)
Occupied Arab Territories
(SG, SR, & Special
Committee)
Rwanda (SRCHR)
Somalia
(IE)
Sudan (SR)
KEY: SR = Special Rapporteur; SRSG = Special Representative of the Secretary General; SRCHR =
Special Representative of the Commission on Human Rights; IE = Independent Expert
4.2.2 The United Nations Treaty Bodies
The United Nations treaty bodies were created to supervise the implementation by States
Parties of their obligations under a number of UN human rights treaties. The principal
committees to which allegations of torture may be made are the following:
Committee Against Torture (CAT): supervises the UN Convention Against Torture
Human Rights Committee (HRC): supervises the International Covenant on Civil and
Political Rights
Committee on the Rights of the Child (CRC): supervises the UN Convention on the
Rights of the Child
Committee on the Elimination of Discrimination Against Women (CEDAW): supervises
the UN Convention on the Elimination of Discrimination Against Women
Committee on the Elimination of Racial Discrimination (CERD): supervises the UN
Convention on the Elimination of Racial Discrimination
The most relevant for the purpose of torture-related material are the CAT, which focuses
solely on the subject of torture, and the HRC, which is a well-established body dealing with a
range of human rights including torture. However, the other committees are very important
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where torture allegations concern certain identifiable categories of persons, namely children,
women and racial groups.
The working methods of each of these bodies are very similar. All have the power to
examine and comment on state reports, and most are also able to receive individual
complaints, or else are in the process of developing such a procedure.
4.2.2.1 Committee Against Torture
Table 12: Basic Facts: Committee Against Torture
BASIC FACTS ABOUT: The Committee Against Torture
Origin
Composition
Purpose
How was it created?
When did it become
operational?
How many persons is it
composed of?
Are these persons independent
experts or state
representatives?
General objective
By the 1984 UN Convention Against Torture
1988
10
Independent experts
To ensure that states respect their obligations
under this treaty to prevent and punish torture.
Functions Examination of state reports (Article 19,
UNCAT)
4.2.2.1.1 How does the Committee Against Torture work?
Fact-finding through confidential inquiry
procedure (Article 20, UNCAT)
Inter-State complaints (Article 21, UNCAT)
Individual complaints (optional) (Article 22,
UNCAT) (See section 4.3.1)
The Committee is responsible for monitoring the extent to which states respect their
obligations to implement the Convention Against Torture, i.e. to prevent, prohibit and punish
torture. The main way in which it does this is through:
The examination of reports submitted by states at regular intervals (See section 2.3 for
a description of how the state reporting procedure works)
In addition, the Committee can:
Carry out a confidential inquiry into allegations of a systematic practice of torture in a
State Party (although some States Parties may not allow this - see section .2.2.1.4)
In relation to states which have accepted the individual complaint procedure, it
examines allegations submitted to it by individuals about specific incidents of torture,
including cases involving the imminent expulsion of individuals to a country where
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they are believed to be at risk of torture (this function will be considered in section
4.3.1).
The inquiry procedure is a confidential procedure to investigate allegations of a systematic
practice of torture in a State Party to the Convention. An inquiry can be initiated when
'reliable information' is received which 'appears to contain well-founded indications that
torture is being systematically practised'. The bulk of this information will originate from
NGOs, and it is possible to expressly request an inquiry if you think you have enough
information to establish a systematic practice, although you should not expect to be told if
your request has been acted upon. If a State Party agrees, the inquiry can involve a factfinding
visit to the country. In such cases, the Committee will make contact with local NGOs,
on the understanding that they will maintain the highest respect for the confidential nature of
the visit.
Ultimately, the Committee will reach a conclusion as to whether or not a systematic practice
of torture exists. This conclusion, along with any appropriate recommendations, will be
transmitted to the State Party. The proceedings remain confidential, but once they have
been concluded, the Committee may, following consultation with the State Party, decide to
include a summary account of their results in its annual report.
4.2.2.1.2 What can you achieve by submitting information to the Committee
Against Torture?
See section 2.3, for suggestions about what can be achieved in the context of the state
reporting procedure.
The strength of the inquiry procedure, in spite of its confidential nature, is the very negative
implications of such an inquiry being initiated against a country. It will only happen in cases
where the situation is considered extremely serious, and for a state to be identified as
tolerating a systematic practice of torture is a very weighty penalty. Although the
proceedings remain confidential throughout the inquiry, the possibility exists nonetheless to
make a summary of the findings public, and this includes an affirmative finding that a
systematic practice exists. This sanction has so far been used in two cases. Even in cases
where findings are not made public by the Committee, or are not made public until long after
the inquiry has taken place, the procedure can be useful. The mere fact that the Committee
has the possibility of making its findings public may create pressure for a State to take steps
to amend legislation or prevent certain practices, in order to discourage the Committee from
following this course of action.
4.2.2.1.3 What should a communication to the Committee Against Torture
contain?
See section 2.3.3, for general guidelines on what a communication in the context of the
state reporting procedure should contain.
The Convention Against Torture creates very specific obligations, many of which States
Parties are required to implement through legislative and other measures. A State Party will
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generally set out in a very comprehensive manner the formal legal situation in relation to
each of these obligations. Your principal objective should be to describe what actually
happens in practice, giving as many examples as possible. Never simply state that
something is ineffective without explaining why.
E.g.:
Where the state has taken legislative, administrative, judicial or other measures to prevent
acts of torture and other forms of ill-treatment, do they actually prevent such acts in practice?
Give examples of where they have worked/not worked.
If torture is a criminal offence under the law, are any officials actually prosecuted or
convicted under this law and what kind of penalties do they receive? Give examples of any
prosecutions and decisions not to prosecute, as well as any convictions and penalties.
Does the state investigate allegations of torture and ill-treatment, and if it does, what is the
result of such investigations? E.g. Do public prosecutors take them seriously? Do they ever
result in the perpetrator being prosecuted? What kind of methods are used to investigate?
Do victims of torture ever receive compensation or any other kind of redress? If
compensation is granted, give examples of the amounts awarded.
Can an individual be convicted on the basis of a statement made as a result of torture? i.e. if
a judge knows that a confession or other incriminating statement has been made under
torture, can he still convict the person?
If you wish to request a confidential inquiry, your objective is two-fold: to demonstrate the
existence of a systematic practice of torture in the country, and to explain the context,
particularly the legal context.
Systematic practice: The Committee has formulated some general criteria which it
considers to indicate that a systematic practice is taking place. It considers that torture is
practiced systematically when:
It is apparent that the torture cases reported have not occurred fortuitously in a particular
place or at a particular time, but are seen to be habitual, widespread and deliberate
in at least a considerable part of the territory in question.
In addition, it considers that:
This need not necessarily result from the direct intention of a Government but may be
the consequence of factors which the Government has difficulty in controlling, and its
existence may indicate a discrepancy between policy as determined by the central
Government and its implementation by the local administration.
Inadequate legislation which in practice allows room for the use of torture may also add
to the systematic nature of the practice.
NGOs should provide information about a large number of incidents of torture, and be wellorganised
in their presentation of these incidents in order to use them to best demonstrate
the systematic nature of the practice. This means that it is not enough to be reporting on a
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few isolated incidents - there must be a geographical concentration of incidents, or a
multiplication of allegations linked to a specific law, for example.
Context: In order for the Committee to gain a sense of whether or not a systematic practice
may exist in a country, it helps for them to familiarise themselves with the context,
particularly the legal context. This is particularly important in helping the Committee to
identify possible causes of a systematic practice, especially inadequate legislation. NGOs
should provide information about any anti-terrorist laws which may be applicable in the
country, and draw the Committee's attention to any laws which appear to be causing
problems, for example any laws permitting the extension of incommunicado detention, or
protecting officials from prosecution for torture.
4.2.2.1.4 Specific tips
States are entitled to make a declaration stating that they do not recognise the
Committee's competence to carry out a confidential inquiry under Article 20. This
means States Parties are
assumed to consent to the procedure unless they specify otherwise. If you wish to
request an inquiry, you will first need to check that the state in question has not made
such a declaration.
NGOs may ask for this procedure to be initiated, but as it is a strictly confidential
procedure, they should not expect to receive any feedback. Do not underestimate the
importance of the confidential nature of the procedure - if you are approached for
information in the context of such an inquiry, including in the case of a fact-finding
visit, you must respect the confidentiality of the investigation if you ever want your
organisation to be consulted again.
Discussions are currently under way to prepare a protocol to the Convention Against
Torture which would give the Committee Against Torture similar powers to those of
the European Committee for the Prevention of Torture, setting up a system of regular
visits to places of detention.
4.2.2.2 Human Rights Committee
Table 13: Basic Facts: Human Rights Committee
BASIC FACTS ABOUT: The Human Rights Committee
Origin
Composition
How was it created?
When did it become
operational?
How many persons is it
composed of?
By the 1966 International Covenant on
Civil and Political Rights
1976
18
Are these persons Independent experts
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independent experts or state
representatives?
Purpose
General objective
Functions
To supervise the implementation by States
of their obligations under this treaty
Examination of state reports (Article 40,
ICCPR)
Inter-State complaints (Article 41, ICCPR)
(has never been used)
Individual complaints (optional) (Optional
Protocol to the ICCPR) (see section
4.3.2)
4.2.2.2.1 How does the Human Rights Committee work?
The Committee is responsible for making sure that States Parties respect their obligations to
respect and to ensure to all individuals the rights contained in the ICCPR, including the right
not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment
(Article 7) and the right of all persons deprived of their liberty to be treated with humanity and
dignity (Article 10). It does this in two ways:
It examines and comments on reports submitted to it by States Parties at regular
intervals
It examines allegations submitted to it by individuals about specific incidents of violation
(this will be considered in section 4.3.2).
See section 2.3, for a description of how the state reporting procedure works, suggestions
as to what can be achieved in the context of the state reporting procedure, and what a
communication should contain.
4.2.2.2.2 Specific tips
The Human Rights Committee can ask States Parties to submit a special report if the
circumstances appear to require it. Potentially, such a request could be made in
response to information of serious violations. States which have been asked to
produce such reports include those of the Former Yugoslavia in the period following
their independence.
25 copies of NGO reports should be provided if possible
4.2.2.3 Other Committees
Table 14: Basic Facts: Committee on the Rights of the Child
BASIC FACTS ABOUT: The Committee on the Rights of the Child
Origin
How was it created?
By the 1989 UN Convention on the
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When did it become operational? 1991
Rights of the Child
Composition
Purpose
How many persons is it composed of? 10
Are these persons independent experts
or state representatives?
General objective
Independent experts
To supervise the implementation by
States Parties of their obligations
under the CRC
Examination of state reports (Article
44, CRC)
Functions
Discussions are currently ongoing
regarding the possibility of adopting
a protocol to the CRC which would
allow individual complaints.
Table 15: Basic Facts : Committee on the Elimination of Discrimination against
Women
BASIC FACTS ABOUT: The Committee on the Elimination of Discrimination Against
Women
Origin
How was it created?
By the 1979 UN Convention on the
Elimination of Discrimination Against
Women
When did it become operational? 1981
Composition
How many persons is it composed of? 23
Are these persons independent experts
or state representatives?
General objective
Independent experts
To supervise the implementation by
States Parties of their obligations
under the CEDAW
Purpose
Functions
Examination of state reports (Article
18, CEDAW)
In early 1999, agreement was finally
reached to establish an individual
complaint procedure, but it had not
yet become operational at the time of
writing.
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Table 16: Basic Facts: Committee on the Elimination of Racial Discrimination
BASIC FACTS ABOUT: The Committee on the Elimination of Racial Discrimination
Origin:
Composition:
Purpose:
How was it created?
When did it become
operational?
How many persons is it
composed of?
Are these persons independent
experts or state
representatives?
General objective
Functions
By the 1965 International Convention on
the Elimination of All Forms of Racial
Discrimination
1969
18
Independent experts
To supervise the implementation by
States Parties of their obligations under
the CERD
Examination of state reports (Article 9,
CERD)
Inter-State complaints (Article 11, CERD)
(never used)
Individual complaints (optional) (Article
14, CERD) (see section 4.3.3)
Of these three committees, all currently function principally through the state reporting
procedure. The CERD is the only one which presently has an operational individual
complaint procedure (see section 4.3.3), but it is probable that both the CRC and the
CEDAW will do so also within a fairly short period of time.
You should refer to section 2.3, for a description of how the state reporting procedure
works, suggestions as to what can be achieved through such a procedure and guidelines on
how to prepare a submission in the context of this procedure.
4.2.2.3.1 Specific tips
The CRC holds a pre-sessional working group in advance of its next session, at which it
draws up a list of issues to raise with reporting governments. It draws up this list on
the basis of an examination of the state report, NGO submissions and those of
relevant UN bodies and specialised agencies, and requests that the Government
provide written answers to the questions before the session at which the report is
considered. It is important to be aware that NGO submissions concerning a State
should therefore be made in advance of the pre-sessional meeting preceding the
consideration of that State's report.
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The CEDAW is moving towards requiring States to produce more focused issue-oriented
periodic reports rather than general ones addressing all of the convention obligations.
This suggests that it would as a rule prefer to receive this type of report from NGOs
also.
4.3 Complaint procedures within the United Nations system
4.3.1 The Committee Against Torture
Table 17: Basic Chronology of Individual Complaint Procedure: CAT
BASIC CHRONOLOGY OF: Individual Complaint Procedure - CAT
Receipt of your communication
A member of CAT is appointed as rapporteur to decide if it should be transmitted to the
Government (Additional information may be requested)
The communication is transmitted to the Government for comments. It is given:
EITHER 3 months to provide
observations on admissibility
OR 6 months to comment on
admissibility and merits
The government's comments are sent to the complainant who is given:
EITHER 4 weeks to respond to
comments on admissibility
OR 6 weeks to comment on
admissibility and merits
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CAT adopts a decision on
admissibility
Government has 6 months to
comment on the merits
Government's comments transmitted
to the complainant, who has 6 weeks
to comment on them
CAT considers all the information before it and adopts its view on the case, and on
whether or not there has been a violation
These are sent to the complainant and the State Party, who may be invited to inform
the CAT of the steps it takes to comply with the CAT's view
A summary of the case is published in the CAT annual report
See section 4.2.2.1, for 'Basic Facts: The Committee Against Torture'.
4.3.1.1 What kind of complaints can it examine?
See section 3.2, regarding the kind of complaints which can be examined by individual
complaint procedures in general.
The Convention Against Torture creates obligations on States Parties not only not to torture,
but also to take preventive and remedial steps against torture. This means that you can bring
a complaint against a State Party not only because of the incident of torture itself, but also in
connection with any of the State Party's other obligations under the Convention. The
principal obligations include (see Articles 2 - 16 of UNCAT for complete list):
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An obligation not to expel, return or extradite a person to another state where there are
substantial grounds for believing that he or she would be in danger of being
subjected to torture. (Article 3)
An obligation to investigate promptly and impartially an allegation of torture, and to
protect a complainant and witnesses from any intimidation as a result. (Article 13)
An obligation to ensure that the legal system grants redress to a victim of torture, as well
as a right to fair and adequate compensation for him or herself, or in the event of his
or her death as a result of the torture, his or her descendants. (Article 14)
An obligation to ensure that any statement established to have been made as a result of
torture is not invoked as evidence in proceedings, except against a person accused
of torture. (Article 15)
4.3.1.2 What are the admissibility requirements?
A communication will be declared inadmissible if:
the communication is anonymous
the communication is an abuse of the right to submit an individual communication
the communication is incompatible with the provisions of the Convention
the same matter has been or is being examined under another procedure of international
investigation
domestic remedies have not been exhausted, except where the remedies are
unreasonably prolonged or unlikely to bring effective relief to the victim
4.3.1.3 Specific tips
Check that the state is a party to the Convention Against Torture and has accepted
individual complaints under Article 22.
Remember that you can complain of a violation of any provision of the Convention
Against Torture, not only about the incident of torture itself. Most of the cases which
have come before the Committee, apart from deportation cases, have concerned the
provisions on redress. If your complaint is about these provisions, you will need to
emphasize the facts relating to the State Party's failure to provide redress.
The Committee and its Secretariat take the confidentiality of the proceedings very
seriously. This means that they will not release information about a case to anyone
except the author of the communication and his or her representative expressly
named in a letter of authorization. It also means that the author of the communication
and his or her representative should not disclose any information about the
proceedings themselves to the public. If in doubt, always check with the Secretariat
about what information may be made public, and what should remain confidential.
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If you wish to make a complaint concerning the imminent deportation of an individual
(under Article 3 of UNCAT), try not to leave your application until the last minute.
There has been a certain degree of abuse of the provisional measures procedure in
recent years and the Committee is beginning to close down on such applications.
The wisest approach would be to contact the Secretariat as soon as a date has been
given for deportation, even if you are still appealing the decision. Explain the situation
and warn them that in the event of the appeal being refused you will be applying for
provisional measures from the Committee. This means that they can prepare for the
possibility of a last minute intervention, rather than being caught unawares. They
may also be able to advise you on the strength of your case.
Table 18: Practicalities of Using Individual Complaint Procedure: CAT
PRACTICALITIES OF USING THE INDIVIDUAL COMPLAINT PROCEDURE: UN
Convention Against Torture
Who can bring a case under this procedure?
Is there a time limit for bringing an
application?
Can you bring a case under this procedure if
you have already brought one under another
procedure concerning the same set of facts?
Do you need legal representation?
Is financial assistance available?
Are amicus briefs accepted?
Who will know about the communication?
How long does the procedure take?
Any individual who claims to be a victim of a
violation of the Convention, his or her
relatives, a designated representative, or
others where the victim is unable to make
the submission in person and the author of
the communication can justify taking action
on the victim's behalf.
No, but the alleged violation must have
occurred after the State Party's declaration
accepting the procedure has come into
force.
No
No
No
Not provided for but not excluded
The author of the communication and his or
her representative, the Committee and its
Secretariat, and the State Party. The identity
of the author is only made public if the
Committee finds that a violation has
occurred, and may remain confidential at the
request of the author even in such cases.
Normally about one year, though can be
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longer.
What measures, if any, can the mechanism
take to assist it in reaching a decision? e.g.
fact-finding hearings; on-site visits; written
pleadings; oral hearings; other.
Are provisional or urgent measures
available?
Written pleadings; oral hearings.
Yes
4.3.2 Human Rights Committee
See section 4.2.2.2, for 'Basic Facts: The Human Rights Committee'.
The basic chronology for the individual complaint procedure of the Human Rights Committee
is the same as that for the CAT. See section 4.3.1.
See section 3.2, for the kind of complaints which can be examined.
4.3.2.1 What are the admissibility requirements?
A communication will be declared inadmissible if:
the communication is anonymous
the communication is an abuse of the right of submission
the communication is incompatible with the provisions of the Covenant
the same matter is being examined under another procedure of international
investigation
domestic remedies have not been exhausted, except where the remedies are
unreasonably prolonged
Table 19: Practicalities of Using Individual Complaint Procedure: Optional
Protocol to the ICCPR
PRACTICALITIES OF USING THE INDIVIDUAL COMPLAINT PROCEDURE: Optional
Protocol to the International Covenant on Civil and Political Rights
Who can bring a case under this
procedure?
Is there a time limit for bringing an
application?
Individuals claiming to be victims of a
violation of the ICCPR. Communications
are accepted from close family, or from an
authorised representative (There must be
a letter of authorisation from the victim or
his or her family). An explanation should be
given where victims do not take action
themselves.
No, but where there is no justification for a
long delay, this may lead the Committee to
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declare the case inadmissible.
Can you bring a case under this procedure
if you have already brought one under
another procedure concerning the same set
of facts?
Do you need legal representation?
Is financial assistance available?
Are amicus briefs accepted?
Who will know about the communication?
What measures, if any, can the mechanism
take to assist it in reaching a decision?
How long does the procedure take?
Are provisional or urgent measures
available?
Yes, but only if the State Party concerned
has not made a reservation in this respect.
No
No
No
The State Party will always be informed of
the identity of the complainant, in order for it
to reply to the allegations, but the
Committee will not make the applicant's
name public if asked not to do so. The
complainant and the State Party concerned
are entitled to publish information
concerning the procedure, unless there is a
request from the complainant or State Party
for confidentiality.
The whole procedure is based on written
pleadings from the parties - there is no
possibility of other measures.
Normally between two and five years,
although this may be reduced to one year in
urgent cases.
Yes, but it is quite rare for the Committee to
exercise this option
4.3.2.2 Specific tips
Check that the state is a party to the ICCPR and has accepted individual complaints
under the Optional Protocol.
Under this procedure, a communication is declared inadmissible if it is being examined
under another procedure of international investigation - this means that a case which
has been considered under another procedure which has since been concluded may
still be admissible. It may be possible, therefore, to attempt to seek a remedy through
another international procedure first, and subsequently to bring the case before the
Human Rights Committee. However, many States Parties have made reservations
which prevent the Committee from examining cases which have already been
examined by other bodies. You should therefore check the reservations to see if this
applies in your case.
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Instead of appending a summary of its views to its annual report, the Human Rights
Committee publishes its views.
4.3.3 Other Committees
See section 4.2.2.3, for 'Basic Facts: The Committee on the Rights of the Child', 'Basic
Facts: The Committee on the Elimination of Discrimination Against Women', and 'Basic
Facts: The Committee on the Elimination of Racial Discrimination'.
Only the CERD Committee currently examines individual complaints, but this function has
recently been approved for the CEDAW Committee and is also under discussion in relation
to the CRC.
The basic chronology for the individual complaint procedure of the Committee on the
Elimination of Racial Discrimination is the same as that for the CAT. See section 4.3.1.
See section 3.2, for the kind of complaints which can be examined.
4.3.3.1 What are the admissibility requirements?
A communication will be declared inadmissible if:
the communication is anonymous
the communication is an abuse of the right of submission
the communication is incompatible with the provisions of the Covenant
domestic remedies, including those before a designated national body, have not been
exhausted, except where the remedies are unreasonably prolonged
it is not submitted within six months after all available domestic remedies have been
exhausted, except in the case of proven exceptional circumstances
4.3.3.2 Specific tips
Check that the state is a party to the CERD and has accepted individual complaints
under Article 14.
Although the CERD is a very widely ratified convention, few States Parties have
accepted the individual complaints procedure
The CERD provides that States Parties having accepted the individual communication
procedure may establish or indicate a national body competent to examine such
complaints at the national level. Only if no remedy is obtained from that body should
they then make an application to the CERD Committee.
The CERD may declare a communication admissible even if it is being considered under
another international procedure
The CERD Committee does not reveal the identity of the complainant without their
express consent.
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Table 20: Practicalities of Using Individual Complaint Procedure: CERD
PRACTICALITIES OF USING THE INDIVIDUAL COMPLAINT PROCEDURE: UN
Convention on the Elimination of Racial Discrimination
Who can bring a case under this procedure?
Is there a time limit for bringing an
application?
Can you bring a case under this procedure if
you have already brought one under another
procedure concerning the same set of facts?
Do you need legal representation?
Is financial assistance available?
Are amicus briefs accepted?
Who will know about the communication?
How long does the procedure take?
What measures, if any, can the mechanism
take to assist it in reaching a decision? e.g.
fact-finding hearings; on-site visits; written
pleadings; oral hearings; other.
Are provisional or urgent measures
available?
An individual claiming to be a victim of a
violation of the rights in the CERD. The
communication should generally be
submitted by the victim him or herself or by
a family member or designated
representative, but may exceptionally be
accepted from a third party on behalf of the
alleged victim where the latter cannot act in
person and the third party can justify taking
action.
Within six months of the exhaustion of
domestic remedies except in verifiable
exceptional circumstances
Yes
No
No
Not provided for but not excluded
The identity of the individual is not revealed
without his or her express consent.
Usually 1-3 years
Written pleadings; oral hearings; request for
relevant documentation from UN bodies and
specialised agencies.
Yes
5. The Mechanisms and Procedures: Regional
5.1 The European System
A number of international organizations exist within the European region: the Organisation
for Security and Co-operation in Europe, the Council of Europe and the European Union. At
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the time of writing, only the Council of Europe had set up formal procedures to deal with
allegations of torture and other forms of ill-treatment, although the OSCE is also active in the
field of human rights.
Within the Council of Europe, two bodies exist which are of relevance to this handbook: the
European Committee for the Prevention of Torture and the European Court of Human
Rights. The European Committee for the Prevention of Torture will be examined in detail
because it exercises a unique function which no other body is currently enabled to do.
Languages: The Council of Europe official and working languages are English and French.
Try to provide at least a brief summary of your allegations in one of those languages. See
section 2.1.1, for suggestions concerning the language of submission of your
communication.
5.1.1 Reporting Mechanism: The European Committee for the Prevention of
Torture
Table 21: Basic Facts: European Committee for the Prevention of Torture
BASIC FACTS ABOUT: The European Committee for the Prevention of Torture
Origin:
Composition:
Purpose:
How was it created?
When did it become
operational?
How many persons is it
composed of?
Are these persons
independent experts or state
representatives?
General objective
Functions
By the 1987 European
Convention for the
Prevention of Torture
1989
As many members as there
are States Parties to the
Convention (currently 40)
Independent experts
To improve the protection of
persons deprived of their
liberty by working to prevent
torture and inhuman or
degrading treatment or
punishment
Monitoring
Fact-finding
5.1.1.1 How does the European Committee for the Prevention of Torture work?
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The functions of the Committee are strictly preventive, but they are also the most intrusive of
any of the mechanisms discussed in this handbook. It carries out visits to places of detention
in Member States in order to examine the treatment of persons deprived of their liberty there,
and prepares a report of its findings and recommendations which it transmits to the state
concerned. This report is confidential, but may be made public with the consent of the state.
In exceptional circumstances, where a State Party fails to co-operate with the Committee or
refuses to implement its recommendations, the Committee may decide to issue a public
statement on that country. The objective of the overall process is not so much to condemn
states, as to identify areas of concern and make suggestions for improving the protection of
persons deprived of liberty from torture and inhuman or degrading treatment or punishment.
Characteristics of the Committee's visits:
What is particularly significant about the Committee's visits when compared to those carried
out by other mechanisms is that:
They can take place at any time
They can be to any place within the jurisdiction of the State Party concerned where
persons are deprived of their liberty in some way by state officials or public order.
This includes not only locations commonly recognised as places of detention, such
as police and gendarmerie stations, prisons, pre-trial and administrative detention
facilities, but also such institutions as military installations, psychiatric hospitals,
places of detention for foreigners, airport transit zones, detoxification centres, and
children and old people's homes.
The Committee is entitled to travel throughout the country and move within institutions
without restriction
The Committee is entitled to carry out interviews in private with persons deprived of
liberty
The Committee is entitled to communicate freely with anyone it believes can supply
relevant information
In other words, once a state has accepted obligations under the Convention, the
Committee's activities should not depend on the consent of the State Party.
Modalities of the Committee's visits:
The Committee's visits are mainly of two types: periodic visits and ad hoc visits. Periodic
visits take place on a regular basis to all States Parties. Ad hoc visits take place in
response to serious and consistent allegations of an urgent problem in a particular State
Party and can be carried out at any time. In addition, the Committee may carry out follow-up
visits in relation to situations which have previously been investigated, where they appear to
be required by the circumstances.
In practice, although notice of visits is not specifically required, the Committee has
developed a notification procedure in relation to periodic visits which involves 1)
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announcing at the beginning of the year which countries it intends to visit, 2) notifying the
state in question of the proposed dates of the visit about two weeks prior to the visit, and
finally 3) providing the state with a list of the locations the delegation wishes to visit a few
days before the start of the visit. During the visit, the delegation may also decide to make
unannounced visits to locations it has not previously indicated. This practice of notification
does not apply to ad hoc visits, which can be carried out at extremely short notice.
States do have the possibility of invoking a limited list of exceptional reasons (national
defence; public safety; serious disorder in places where persons are deprived of their liberty;
or that an urgent interrogation relating to a serious crime is in progress) in order to postpone
a visit - however, this may only be used for postponement, and not to prevent a visit
indefinitely.
5.1.1.2 What can you achieve by submitting information to the Committee for
the Prevention of Torture?
In general:
The confidential nature of the Committee's work means that, although information
sent to the Secretariat is always acknowledged (you will receive a letter to tell you
that your communication has been received), it is not able to express any opinion
regarding the quality or substance of the material, or indicate if or how it will be used.
To the NGO sending such information, the process may appear somewhat like
throwing a stone into a very deep well and hearing a little 'plink' that tells you it has
reached the bottom, but not being able to see where it has landed. It is very
important not to be discouraged by this. From the Committee's standpoint, your
information is essential if it is to make the most of its functions, and it is important that
you view your potential achievements from a longer-term perspective.
Your information can help the Committee to:
Focus on the most serious problems in a country relating to the treatment of
persons deprived of their liberty and the risks of torture or ill-treatment, and
identify what the sources of those problems might be.
Identify a possible need for an ad hoc visit.
Plan its visits, identifying the institutions which should be visited and the areas of
concern which need to be examined most closely.
Understand the social and legal context of a country.
Assess the extent to which its recommendations are being implemented,
especially with regard to safeguards, within the ongoing dialogue which takes
place between it and governments as part of the co-operation process.
Monitor ongoing developments in a State Party, both positive and negative.
From your perspective, this means that by submitting information, you are
contributing to the identification of serious problems relating to the treatment of
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persons deprived of their liberty and, even more importantly, to the identification of
the causes of those problems, and the development and implementation of measures
to prevent them.
For the individual:
Unlike many of the other mechanisms, the Committee for the Prevention of Torture
does not deal with individual cases for their own sake. In the European region, this is
the domain of the European Court of Human Rights, which deals almost exclusively
with individual allegations and will be considered below. The Committee for the
Prevention of Torture is far better placed and equipped to contribute to a longer term
improvement in the overall protection of persons in official custody, and to prevent,
rather than remedy, incidents of torture. However, just because the Committee does
not provide distinct remedies for individuals as one of its functions does not mean
that individuals cannot benefit both directly and indirectly from its activities.
First of all, it is important to recall that it is through individual allegations that patterns
can be identified, and that those individuals gain from the elimination of bad practice.
If, for example, a significant number of allegations is received about abuses taking
place in a children's home, and the Committee investigates and makes
recommendations to eliminate the causes, this will be of immediate benefit to the
individuals in the institution.
Furthermore, interventions on behalf of individuals are not envisaged in their own
right, but do happen in the context of the Committee's general activities. They are
used as a form of case-study in order to investigate a particular practice or general
allegation. For example, the Committee has acted in cases of individuals detained
under anti-terrorism legislation, in order to test allegations concerning a practice of illtreatment
of such persons. Interventions may also occur where an urgent situation is
brought to the attention of a delegation during a country visit, and the Committee has
even carried out an ad hoc visit in response to the detention of a public figure alleged
to be especially at risk. The important point to remember is that, although the
Committee's intervention in such cases is not intended to provide an individual
remedy, it can in practice have equivalent effects.
5.1.1.3 What should a communication to the Committee for the Prevention of
Torture contain?
You should refer to the general guidelines in section 2, on how to prepare a submission to a
reporting mechanism. In addition, you should bear in mind the following:
Characteristics of the information:
The content of your information will be guided to some extent by the particular purpose you
have in mind - for example, if you feel that an ad hoc visit might be desirable, you will want to
emphasize the urgency and extreme nature of a situation. Above all else, however, the
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information must be balanced (see section 2.1.2, for suggestions on how to achieve this)
and capable of verification by the Committee. This means that:
The allegations being made should be as recent as possible
The details given should be as precise as possible
Both are essential if the Committee is to be in a position to verify the information, and the
recent nature of the allegations is also important for the Committee to be able to identify
current problems. Don't forget that corroborative evidence will support and confirm the
details of your allegations, particularly medical evidence which is consistent with the
allegations.
In addition, with the exception of information reporting on, for example, the implementation of
the Committee's recommendations by a particular State, there is a further important feature
which should be present:
The focus of the information should be on establishing evidence of a pattern or
'situation'.
This is important because the Committee's work is designed to investigate and improve the
general situation throughout Member States. If you send it a single individual case, this can
be useful as part of a greater body of information received from other sources (and should
certainly be sent), but it is not normally sufficient to establish that there is a generalized
problem. If you can present a series of cases, you are going much further towards
establishing a pattern, and are more likely to stimulate the Committee into further
investigation of the situation.
Subject-matter:
Do not limit yourself to the more obvious custodial institutions like prisons or police stations.
These are certainly a primary source of concern to the Committee, but there are other
institutions in which persons are deprived of their liberty by state officials which are also
within the mandate of the Committee. Examples include military establishments, places of
detention for foreigners, detoxification centres, children and old people's home, and
psychiatric institutions, but this should not be considered an exclusive list. Relevant
institutions should have two characteristics: they should house persons who are not free to
leave the establishment at will, and the deprivation of liberty should be the result of
action taken by a public authority.
You should bear in mind, also, that the Committee takes an interest in all aspects of the
treatment of persons deprived of liberty. This extends not only to incidents of torture in an
institution, but to all of the factors contributing to the creation of an inhuman or degrading
environment within the institution, including cell size and occupancy, hygiene and sanitation,
opportunities for exercise, health care, solitary confinement and restrictions on contacts with
the outside world. It can make recommendations not only about the material and social
conditions of detention, but also from a longer term perspective, addressing such issues as
legislative safeguards or the training of personnel.
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5.1.1.4 Specific tips
Who will be informed of the submission/source of the information?
The Committee for the Prevention of Torture will never name individuals in its reports
unless their cases are already well-known and identifiable within the public domain. It
will also not name NGOs with which it meets when on visits and from which it
receives information, if this is the wish of the NGOs concerned.
Will you receive any feedback about your submission?
As the procedure is based on the principle of confidentiality, you will not receive any
direct feedback about your submission.
Make sure that the state about which you are sending the information is a party to the
European Convention on the Prevention of Torture.
With respect to information submitted in connection with a periodic visit, it can be very
helpful when provided during the visit, but is even more useful if received in advance
so that there is time to consider its contents. Check to see which countries the
Committee will be visiting during the year (the Committee issues a press release
towards the end of the previous year, usually in December, with this information), so
that you can prepare and send your information in advance. It is important to note
that the periodic visit could take place any time that year, and you will not know when
until it happens.
You should not wait for a periodic visit to be scheduled to send information about a
country. Dialogue between the Committee and States Parties continues in between
visits, and the Committee needs to stay in touch with developments. Your information
may even provide the basis for the identification of a need for an ad hoc visit.
The Committee usually meets with national NGOs on the first day of its visit to a country
- this gives you an opportunity to provide it with recent information and possibly to
have an impact on the places it chooses to visit.
5.1.2 Complaint Procedure: The European Convention on Human Rights
Table 22: Basic Facts: European Court of Human Rights
BASIC FACTS ABOUT: The European Court of Human Rights
Origin:
How was it created?
When did it become
operational?
By the 1950 European
Convention on Human
Rights
Revised by the 11 th Protocol
to that convention, 1994
1998 under the revised
system
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Composition:
Purpose:
How many persons is it
composed of?
Are these persons
independent experts or state
representatives?
General objective
Functions
As many judges as there
are States Parties to the
convention
Independent experts
To examine complaints of
violation of the ECHR
Inter-State complaints
(compulsory) (Article 33,
ECHR)
Individual complaints
(compulsory) (Article 34,
ECHR)
Fact-finding (in the context
of individual complaints
only, and is an optional step
in the procedure)
5.1.2.1 What are the admissibility requirements?
A communication will be declared inadmissible if:
the communication is anonymous
the communication has not been submitted within six months of the date of the final
decision in the case by the domestic authorities
the communication is manifestly ill-founded or an abuse of the right of petition
the communication is incompatible with the provisions of the Convention.
the application is substantially the same as one which has already been considered by
the Court or another procedure of international investigation, and contains no new
relevant information
domestic remedies have not been exhausted, except where the remedies are ineffective
or unreasonably prolonged
5.1.2.2 What should your application contain?
Your initial letter should contain:
a brief summary of your complaints
an indication of which Convention rights you think have been violated
an indication of the remedies you have used
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a list of the official decisions in your case, including the date of each decision, who it was
made by, and an indication of what it said - you should attach a copy of each of these
decisions.
If you are then sent an application form, you should follow the instructions on that form and
in the accompanying letter.
Table 23: Basic Chronology of Individual Complaint Procedure: ECHR
BASIC CHRONOLOGY OF: Individual Complaint Procedure - ECHR
Your initial letter is sent to the Court, containing minimum information
You may be asked for further information - if it appears that there may be a case, you will
be sent an application form
Upon receipt, your application is registered and brought to the attention of the Court
The allegations are communicated to the Government, which is asked to submit its
observations on the admissibility of the application
The applicant replies to the Government observations
Sometimes, the Court may decide to hold an admissibility hearing. The Court decides
if the application is admissible
Possibility of friendly settlement
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Parties are asked to submit any further observations on the merits/additional
evidence.
Court considers the merits and adopts a judgment, possibly after an oral hearing
The Court usually decides the question of just satisfaction at the same time, but could
choose to do so at a later date
The State Party must execute the judgment under the supervision of the Committee
of Ministers of the Council of Europe
Table 24: Practicalities of Using Individual Complaint Procedure: ECHR
PRACTICALITIES OF USING THE INDIVIDUAL COMPLAINT PROCEDURE: European
Convention on Human Rights
Who can bring a case under this
procedure?
Is there a time limit for bringing an
applications?
Can you bring a case under this
procedure if you have already brought
one under another procedure
concerning the same set of facts?
Do you need legal representation?
Individuals, NGOs and groups of individuals
claiming to be victim of a human rights violation. A
case can be brought by a close relative of the
victim in cases where the victim cannot do so in
person, e.g. where he or she is disappeared or
dead.
Six months from the date of the final decision
taken in the case by the state authorities.
No
It is not necessary at the time of the application,
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ut is required for proceedings after a case has
been declared admissible, unless exceptional
permission is given by the President of the Court
for the applicant to present his or her own case
Is financial assistance available?
Are amicus briefs accepted?
Who will know about the
communication?
How long does the procedure take?
What measures, if any, can the
mechanism take to assist it in
reaching a decision? e.g. fact-finding
hearings; on-site visits; written
pleadings; oral hearings; other
Are provisional or urgent measures
available?
Yes, but only if the application is communicated to
the Government, not at the time of the application.
You will need to fill out a statement of your means
signed by your domestic legal aid board, as legal
aid is only granted where there is a financial need.
Yes, with permission (Rule 61, Rules of the Court)
In principle, the proceedings are public unless the
President of the Chamber decides otherwise. In
exceptional case, where an applicant does not
wish his or her identity to be made public and
submits a statement explaining the reasons for
this, anonymity may be authorised by the
President.
Several years
Fact-finding hearings; expert evidence; written
pleadings; oral hearings.
Yes, but it is a practice which has been developed
by the Court and has no basis in the convention. It
is applied only in very specific cases, mainly
immigration/deportation cases where there is a
'real risk' if a person is returned. (Rule 39, Rules of
the Court)
5.1.2.3 Specific tips
Under the original procedure, which was replaced in 1998, the initial stages of the case
took place before the European Commission on Human Rights. If you are
researching a particular topic under the Convention case law, remember to search
for reports by the Commission as well as for Court judgments.
If the six month period within which an application must be submitted is about to expire,
and there is no time to prepare a full application, you can send a 'stop-the-clock'
application with a short summary of your complaint, which should then be followed up
with the complete application as soon as possible.
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For the purpose of respect for deadlines given by the Court, it is the date of posting not
the date of receipt which the Court considers determinative - however, it is advisable
to at least notify the Court on the day of the deadline that the submission has been
posted. This can be done by faxing a copy of the cover letter to the Court, or via
email or telephone.
The Court may, on its own initiative or at the request of one of the parties, obtain any
evidence it considers useful to the case, including by holding fact-finding hearings -
where such measures are requested by one of the parties, that party will normally be
expected to bear the resulting costs, although the Chamber may decide otherwise. If
you do not wish to bear such costs, it is advisable to word your letter carefully -
suggest to the Court that it might wish to exercise its discretion to take measures to
obtain evidence.
The Court carries out most of its regular work in Chambers of 7 judges. Where a case is
considered to raise a serious issue or might involve a change in the views of the
Court in relation to a particular subject, it can be referred to a Grand Chamber of 17
judges. Where a case has been considered by a Chamber and a judgment delivered,
it is possible, in exceptional cases, to request within three months of the judgment for
the case to be referred to the Grand Chamber for reconsideration. (Rule 73, Rules of
the Court)
It is possible to request the interpretation of a judgment within one year of its delivery.
(Rule 79, Rules of the Court) It is also possible to request, within six months of the
discovery, the revision of a judgment where important new facts are discovered
which would have influenced the Court's findings. (Rule 80, Rules of the Court)
5.2 The Inter-American System
The regional organisation in the Americas, by which is meant North, Central and South
America, as well as the Caribbean region, is the Organisation of American States (OAS). A
number of human rights instruments have been adopted within the OAS, including the
American Declaration on the Rights and Duties of Man; the American Convention on Human
Rights, the Inter-American Convention to Prevent and Punish Torture, the Inter-American
Convention on the Forced Disappearance of Persons, and the Inter-American Convention on
the Prevention, Punishment and Eradication of Violence Against Women. There are two
mechanisms which are responsible for the implementation of all of these instruments: the
Inter-American Commission and Court of Human Rights.
Languages: The official languages of the Commission and Court are Spanish, French,
English and Portuguese. The Court and Commission select their working language(s) in
accordance with the languages spoken by their members. In the context of the individual
complaint procedure, the Court may decide to work in the language of one of the parties to a
particular case, as long as that language is also an official language.
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Table 25: Basic Facts: Inter-American Court of Human Rights
BASIC FACTS ABOUT: The Inter-American Court of Human Rights
Origin
How was it created?
By the 1969 American Convention
on Human Rights
When did it become operational? 1979
Composition
Purpose
How many persons is it composed
of?
Are these persons independent
experts or state representatives?
General objective
Functions
7
Independent experts
To supervise the implementation of
the American Convention on Human
Rights
Individual complaints (optional)
(Articles 61-62, ACHR)
Table 26: Basic Facts: Inter-American Commission on Human Rights
BASIC FACTS ABOUT: The Inter-American Commission on Human Rights
Origin How and when was it created? By a resolution of the OAS Foreign
Ministers in 1959 for the purpose of
furthering respect for the American
Declaration on the Rights and Duties
of Man
Revised by the American Convention
on Human Rights in 1969
Composition
How many persons is it composed
of?
Are these persons independent
experts or state representatives?
7
Independent experts
Purpose General objective To promote respect for and defence of
human rights
Functions
Monitoring (Article 41, ACHR)
Fact-finding (Article 41, ACHR)
Inter-State complaints (optional)
(Article 45, ACHR)
Individual complaints (compulsory)
(Article 44, ACHR)
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5.2.1 Reporting Mechanism: The Inter-American Commission on Human Rights
5.2.1.1 How does the Inter-American Commission on Human Rights work?
The Inter-American Commission is responsible for supervising state respect for obligations
under a number of OAS human rights instruments. It has reporting functions as well as
receiving individual complaints (the latter will be considered below, section 5.2.2).
In relation to all OAS Member States (whether or not party to the American Convention on
Human Rights), the Inter-American Commission is empowered to develop awareness of
human rights, make recommendations to governments, prepare studies and reports, urge
governments to supply it with information regarding human rights, and serve as an advisory
body regarding human rights. Most importantly for the purposes of this handbook, it can:
Prepare reports on the human rights situation in particular countries, based on a
combination of fact-finding visits (where consent is given by the Member State in
question), expert evidence, and information received in various forms including
individual petitions
Prepare an annual report, in which it has developed a practice of including entries on
specific Member States
In relation to States Parties to the Inter-American Convention to Prevent and Punish
Torture, it is also empowered to:
Receive information from States Parties concerning any measures adopted in application
of the convention, and analyse in its annual report the situation in OAS Member
States regarding the prevention and elimination of torture (Article 17)
5.2.1.2 What can you achieve by submitting information to the Inter-American
Commission on Human Rights?
Although it is able to engage in its own fact-finding, it is the information it receives from a
variety of sources, including NGOs, which helps the Inter-American Commission to identify
those situations most in need of its attention. Submitting information gives you an
opportunity to:
Draw attention to a situation
Seek positive changes in a general situation
Combat impunity
In addition, supplying information in the context of preparations for on-site visits provides a
further opportunity to draw the attention of the Inter-American Commission to the most
pressing problems in a very specific way.
The power of the Inter-American Commission under the Convention to Prevent and
Punish Torture to report on the practice of torture in Members States is one which has
great potential for helping to focus attention on the problem of torture in the region. It is,
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however, one which the Inter-American Commission has not yet exercised. NGOs can
encourage and facilitate this by supplying torture-specific information for this purpose.
5.2.1.3 What should a communication to the Inter-American Commission on
Human Rights contain?
See section 2, for suggestions on how to submit individual and general information to a
reporting body.
5.2.2 Complaint Procedure: the Inter-American Commission and Court of
Human Rights
See section 5.2, above for 'Basic Facts About: the Inter-American Commission on Human
Rights' and 'Basic Facts About: the Inter-American Court of Human Rights'
A complaint within the Inter-American system can be based either on the American
Convention on Human Rights (where a state is a party to that convention) or on fundamental
human rights standards under general international law, with particular reference to the
American Declaration on the Rights and Duties of Man (where a state is a member of the
OAS but not a party to the American Convention on Human Rights).
In practice, the application procedure works in the same way in both cases as long as the
complaint remains before the Commission. However, complaints can only be referred to the
Court if they concern:
• a State Party to the American Convention on Human Rights
• who has accepted the jurisdiction of the Court
Table 27: Basic Chronology of Individual Complaint Procedure: Inter-American
System
BASIC CHRONOLOGY OF: Individual Complaint Procedure - Inter-American System
[CN = Commission CT = Court]
A communication is received by the CN
A case is opened. The petitioner may be asked to provide additional information.
There is no formal admissibility stage: the CN may decide to declare a case admissible or
244

inadmissible at this stage, or may simply confirm the admissibility of the case in its report on
the merits.
The Government is asked to provide relevant information within 90 days (or up to 180 days
if an extension is requested). In urgent cases, the information will be requested promptly. The
petitioner may also be asked for further information.
Both parties are given an opportunity to comment on each other's submissions.
The CN may also gather information itself, through an on-site visit, a hearing or any other
means necessary.
The CN offers its services to assist in reaching a friendly settlement.
If no friendly settlement is reached, the CN prepares a confidential report with its
conclusions and recommendations, and transmits it to the state.
If the Member State does not comply with the recommendations, and is:
Not party to the ACHR or is a party but
has not accepted the jurisdiction of the
CT, the CN can prepare a 2nd report
which it usually makes public. This is the
A party to the ACHR and has accepted the
jurisdiction of the CT, the case can be
referred to the CT by the CN or the State
Party, not the petitioner. The petitioner may be
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end of the matter.
asked by the CN to assist it
The CT gathers information about the case
through written and oral hearings and any other
means necessary.
The CT adopts a judgment stating whether or
not there has been a violation.
The CT also addresses the question of
reparation, either in the original judgment or in
a separate one.
5.2.2.1 What can you achieve by using this procedure?
The Inter-American Commission on Human Rights can:
Adopt conclusions in an individual case in the form of a report
Make public its report where a state does not take adequate measures to comply with
the conclusions
Request that the Government take precautionary measures in cases where irreparable
harm to persons is likely
Confidentially request the Government to provide information as to the whereabouts of
allegedly disappeared persons
The Inter-American Court of Human Rights can:
• Adopt a legally binding judgment, including a finding of violation
• Order the prosecution of a perpetrator
• Award reparation
• Order provisional measures of protection in urgent cases where irreparable harm to
persons is likely
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5.2.2.2 What kind of complaints can be examined?
By the Inter-American Commission on Human Rights:
Where it concerns a State Party to the American Convention on Human Rights, a
complaint can be examined if:
• it alleges a violation of the American Convention on Human Rights for which the state
may be considered responsible
• Where it concerns an OAS Member State not a party to the American Convention
on Human Rights, a complaint can be examined if:
• it relates to an alleged violation of fundamental human rights standards, under
general international law, with particular reference to the American Declaration on the
Rights and Duties of Man
By the Inter-American Court of Human Rights:
A complaint can be examined if:
• it alleges a violation of the American Convention on Human Rights for which the state
may be considered responsible
• it relates to a State Party to the American Convention on Human Rights which has
accepted the jurisdiction of the Court
• it has first been examined by the Commission
• it has been referred to the Court by either a State Party or the Commission
5.2.2.3 What are the admissibility requirements?
A communication will be inadmissible if:
• Adequate and effective domestic remedies have not been exhausted
• The case has not been submitted within 6 months of notification of the final decision
in the case, or within a 'reasonable time' in cases where domestic remedies cannot
be exhausted
• A case addressing the same facts has already been, or is currently being, examined
by the Commission or another international tribunal, except where that case was
brought by a third party without the authorization of the victim or the victim's family,
and the present case is being brought by the victim, a family member or an
authorised representative
• The communication is anonymous or lacks certain details about the petitioner
• The communication does not contain facts appearing to reveal a violation of rights
• The communication is manifestly groundless (ill-founded)
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5.2.2.4 Specific tips
• Check to see if the state is a party to the ACHR, and if it has accepted the
competence of the Court to examine individual complaints. If not, individual
complaints concerning Member States of the OAS may still be submitted to the
Commission on the basis of the American Declaration.
• Complaints should be based on the ACHR (or the American Declaration), but
reference to the Inter-American Convention to Prevent and Punish Torture, the Inter-
American Convention on the Forced Disappearance of Persons, and the Inter-
American Convention on the Prevention, Punishment and Eradication of Violence
Against Women may be relevant to help clarify a point.
• At the stage when the Court considers the question of reparations, the
representatives of the victim or the victim's family are entitled to submit their own
arguments on the matter.
Table 28: Practicalities of Using Individual Complaint Procedure: Inter-
American System
PRACTICALITIES OF USING THE INDIVIDUAL COMPLAINT PROCEDURE: Inter-
American System
Who can bring a case under this procedure?
Is there a time limit for bringing an
application?
Can you bring a case under this procedure if
you have already brought one under another
procedure concerning the same set of facts?
Do you need legal representation?
Is financial assistance available?
Are amicus briefs accepted?
Who will know about the communication?
How long does the procedure take?
Any group or person, or any NGO entity
legally recognised in one or more Member
State, either on own behalf or on behalf of a
third person. Not necessary to have contact
with victim, but usually with victim, family or
authorised representative.
Six months from the final decision in the
case where domestic remedies have been
exhausted, or within a reasonable time of
the facts alleged where exhaustion of
domestic remedies is not possible
No - unless the case was brought by a third
party without the authorisation of the victim
or his or her family
Not necessarily but it is advisable
No
Yes
The petitioners can hold a press conference
after presenting the petition
May take years
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What measures, is any, can the mechanism
take to assist it in reaching a decision? e.g.
fact-finding hearings; on-site visits; written
pleadings, oral hearings, other.
Are provisional or urgent measures
available?
Fact-finding hearings; on-site visits; expert
evidence; written pleadings; oral hearings.
Yes
5.3 The African System
The African system for the protection of human rights is based on the African Charter on
Human and Peoples' Rights, adopted under the auspices of the Organisation of African
Unity (OAU). Supervision of respect for the Charter has until now been the exclusive domain
of the African Commission on Human and Peoples' Rights. In the context of its work, the
African Commission has appointed a number of Special Rapporteurs, namely the Special
Rapporteur on Extra-Judicial Executions, the Special Rapporteur on Women and, of
particular relevance to this handbook, the Special Rapporteur on Prisons and Conditions of
Detention in Africa. In 1998, a Protocol was adopted for the purpose of establishing an
African Court to work alongside the Commission, but this Court will only become operational
when 15 States have signed the Protocol. On the basis of current indications given by
African States, this is likely to take between five and ten years.
Languages: The official languages of the Commission are Arabic, English, French and
Portuguese, but in practice the Secretariat works in English and French. If a party wishes to
make a presentation in another language, it should arrange for translation.
Table 29: Basic Facts: African Commission on Human and Peoples' Rights
BASIC FACTS ABOUT: The African Commission on Human and Peoples'Rights
Origin How was it created? By the 1981 African Charter on
Human and Peoples' Rights
When did it become operational? 1987
Composition How many persons is it composed
of?
Are these persons independent
experts or state representatives?
11
Independent experts
Purpose General objective To promote and protect human and
peoples' rights in Africa
Functions
Examination of state reports (Article
62, ACHPR)
Monitoring (Article 45, ACHPR)
Fact-finding (Articles 45 and 58,
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ACHPR)
Receiving communications, including
from states (Article 47, ACHPR) and
from individuals (automatic) (Article
55, ACHPR)
5.3.1 Reporting Mechanisms
5.3.1.1 African Commission on Human and Peoples'Rights
5.3.1.1.1 Functions
The African Commission can:
• examine periodic state reports (Article 62, ACHPR)
• undertake research and studies, including through fact-finding visits (Article
45(1)(a), ACHPR)
• conduct an in-depth study, and engage in active investigation, where it receives
communications indicating the existence of a series of serious and massive
violations of human rights (Article 58, ACHPR)
See section 2.3, for an indication of how state reporting procedures work.
5.3.1.1.2 Specific tips
• Any serious NGO, whether African or non-African, can apply for observer status with
the African Commission. It is not necessary to have observer status in order to send
communications, but having the status gives the organisation certain entitlements: To
be informed of, attend and participate in public meetings, to receive documents and
publications of the African Commission and to request that an item be placed on the
Commission's agenda. Any request for the introduction of an agenda item should be
made at least 10 weeks before the opening of the session.
Any application for observer status should be submitted in writing and should include:
the organization’s constitution, and information on its structure, leadership,
membership and activities. It would be useful also to include copies of any
publications or activity reports. A rapporteur is assigned to the application and makes
a recommendation to the African Commission on whether or not to grant the status.
5.3.1.2 Special Rapporteur on Prisons and Conditions of Detention in Africa
Table 30: Basic Facts: Special Rapporteur on Prisons and Conditions of
Detention in Africa
BASIC FACTS ABOUT: The Special Rapporteur on Prisons and Conditions of
Detention in Africa
Origin
How was it created?
By a 1996 resolution of the African
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Commission on Human and Peoples'
Rights
When did it become
operational?
How many persons is it
composed of?
1996
1
Composition Are these persons independent
Purpose
experts or state
representatives?
General objective
Functions
Independent expert
To examine the situation of persons
deprived of their liberty within the
territories of States Parties to the ACHPR.
Monitoring
Fact-finding
The Special Rapporteur on Prisons is able to exercise its functions in relation to all States
Parties to the ACHPR.
The SRP can:
• Engage in monitoring with a view to identifying problem areas and making
recommendations for their improvement
• Make recommendations in individual cases
• Recommend urgent action in individual cases
• Seek and receive information on cases and situations falling within the mandate
• Carry out fact-finding visits with the consent of States Parties. Reports of such
visits are presented orally to the ACNHR in a public session, and although the
Charter itself suggests that reports should only be made public by a decision of the
OAU Assembly of Heads of State and Government, in practice the Commission
makes it public without reference to the OAU.
Main areas of concern to the SRP include:
• Prison conditions
• Health issues in detention contexts
• Arbitrary or extra-legal detention or imprisonment
• Treatment of persons deprived of their liberty
• Conditions of detention for especially vulnerable groups such as: refugees, persons
suffering from physical or mental disabilities, or children
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5.3.2 Complaint Procedure: The African Commission on Human and Peoples'
Rights
Table 31: Basic Chronology of Individual Complaint Procedure: ACHPR
BASIC CHRONOLOGY OF: Individual Complaint Procedure - ACHPR
Communication received from an individual or NGO.
Further information may be requested by the Secretariat
If there is sufficient information, the
communication is transmitted to the
Government - the name of the author is
not disclosed if anonymity has been
requested
If there is insufficient information to
indicate that a possible violation may have
occurred, the communication may not be
transmitted to the Government at all.
Both parties are invited to submit their
comments on admissibility
The Commission considers the admissibility of the case. If declared admissible, the
Commission proceeds to consideration of the merits
The Commission makes itself available to the parties to assist in reaching a friendly
settlement
In order to examine the merits, both parties must provide their observations on the
matter. This often involves an oral hearing before the Commission
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The Commission reaches a decision on whether or not there has been a violation of the
Charter - its consideration of the merits takes place in private
The Commission continues to work with the parties to assist with implementation, but
there is no formal enforcement mechanism and it relies essentially on the OAU for
enforcement.
5.3.2.1 What are the admissibility requirements?
A communication will be declared inadmissible if:
• it does not indicate the names of the authors (although they can request that their
anonymity be protected by the Commission)
• domestic remedies have not been exhausted, except where the remedies are
unreasonably prolonged (but see 'Specific Tips' below)
• the communication has not been submitted within a reasonable time after the
exhaustion of local remedies
• the communication is incompatible with the provisions of the Charter of the OAU or
with the African Charter.
• the communication is written in insulting language directed at the State concerned
• the allegations are based exclusively on mass media reports
• the application deals with matters already settled by the States involved in
accordance with the principles of the UN and OAU Charters or the African Charter
Table 32: Practicalities of Using Individual Complaint Procedure: ACHPR
PRACTICALITIES OF USING THE INDIVIDUAL COMPLAINT PROCEDURE: African
Charter on Human and Peoples'Rights
Who can bring a case under this
procedure?
Is there a time limit for bringing an
application?
Any person or NGO who can provide
sufficiently precise details of an incident to
enable its investigation - it does not necessarily
have to be either the victim or his or her family,
in recognition of the practical difficulties
involved in the African context
The application should be made within a
reasonable time, but the Commission interprets
this very generously
Can you bring a case under this No
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procedure if you have already brought
one under another procedure concerning
the same set of facts?
Do you need legal representation?
Is financial assistance available?
No, but it is permitted
No
Are amicus briefs accepted? Any information which can assist the
Commission may be received, but the
confidentiality of the procedure must be
respected by all.
Who will know about the
communication?
How long does the procedure take?
What measures, if any, can the
mechanism take to assist it in reaching a
decision? e.g. fact-finding hearings; onsite
visits; written pleadings; oral
hearings; other.
Are provisional or urgent measures
available?
The identity of the author may be kept
confidential if requested
There were long delays in initial cases, but the
procedure now takes about 18 months to 2
years.
Written pleadings; oral hearings; on-site visits in
cases involving groups of complainants.
Yes
5.3.2.2 Specific tips
• The Commission will proceed to an examination of a communication even if the
State Party does not respond to the allegations.
• In addition to the basic details, you should indicate if the communication refers to
serious or massive violations of human and peoples' rights.
• In cases of serious and massive violations, and where complaints involve large
numbers of people or long-standing violations, the Commission has in practice not
required the exhaustion of domestic remedies, on the ground that this would be
impractical and/or undesirable.
• Alternatively, where allegations involve serious and massive violations, it is possible
to base a communication on Article 58 in order to avoid the requirement to exhaust
domestic remedies.
• The Commission requires the authors of the communication to provide their names
and addresses, but where the circumstances make it impractical (e.g. where large
number of victims) it may not be necessary to name all the victims involved. The
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information should be sufficiently precise to make it possible to carry out an inquiry
however.
• Much of the procedure for individual complaints has been developed through the
Commission's rules of procedure and practice - do not be surprised if you do not find
much information about the procedure in the Charter itself.
5.4 Other Regions
There are currently no other regions which have established formal procedures to consider
allegations of human rights violations, although many are beginning to devote increasing
interest to human rights in general. The years to come may well see a growth in the number
of international bodies able to consider allegations, and it is probable that any new regional
bodies will be based on the well-established, tried and tested procedures described in
connection with Europe, the Americas and Africa.
In the meantime, it is important not to be discouraged by the absence of international
remedies close to home - the UN bodies are subject to no geographical limitations and can
examine situations all over the world. Check which treaties your state is a party to, and
remember that the non-treaty procedures can examine the human rights situation in any
state which is a member of the UN.
SOURCE: The Torture Reporting Handbook- by Camille Giffard, Human Rights Centre,
University of Essex.
Available at: http://www.essex.ac.uk/torturehandbook/english.htm
V. ROLE OF LAWYERS AND JUDGES
A) The role of judges and prosecutors in protecting detainees and
criminal suspects from torture
1.1 International human rights law requires states to keep under systematic review
interrogation rules, instructions, methods and practices, as well as arrangements for
the custody and treatment of persons subjected to any form of arrest, detention or
imprisonment, as an effective means of preventing cases of torture and illtreatment.
15 States are also required to investigate complaints of ill-treatment of
detainees and establish independent mechanisms to monitor detainees. 16
1.2 This chapter focuses on the role of judges and prosecutors in protecting those
deprived of their liberty from acts of torture or other forms of ill-treatment. In
15 Human Rights Committee General Comment 20, para. 11.
16
Concluding Observations of the Human Rights Committee: France, UN
Doc.CCPR/C/79/Add.80, 4 August 1997, para.16.
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particular, it considers how the safeguards set out in chapter two should be applied. It
provides practical advice for how judges and prosecutors can satisfy themselves that
detainees brought before them have not been subject to torture or other prohibited
forms of ill-treatment. It also highlights the obligation on prosecutors to ensure that
evidence gathered in the course of a criminal investigation has been properly
obtained and that the fundamental right of the criminal suspect not to be tortured or
ill-treated has not been violated in the process. The risk of such treatment is all the
greater if the legal system bases convictions mainly or substantially on confessions
and on evidence obtained in pre-trial detention.
1.3 Judges and prosecutors exercise different functions in different legal systems and
their role in (a) deciding on the admissibility of evidence, (b) questioning witnesses
and (c) summing up cases will also vary. The discretion that judges and prosecutors
will enjoy in carrying out their functions will partly depend on what legal system they
are operating under. For example, in civil or common law systems, criminal justice
may follow respectively either inquisitorial or adversarial models. Trials may also be
conducted in different ways depending on whether they take place in front of a jury or
judges sitting on their own. The following principles will need to be interpreted within
the framework of the specific criminal justice system of different countries.
The role of judges
1.4 The basic role of judges is to uphold national law – including international law when
this has been incorporated into domestic legislation – and to preside independently
and impartially over the administration of justice. In deciding guilt or innocence, or in
weighing the merits of claims between individuals and the state, judges must have
reference only to the facts, so far as they can be established; the merits of each
party’s position; and the relevant law. But justice also requires that judges understand
all the factors relevant to the situation they are considering, including those which
may affect the way that those present in the courtroom behave, or perceive the trial
process. This does not just involve controlling procedures, making rulings on points
of law, summing up cases, giving judgments, or passing sentences, but also ensuring
that their court proceedings are managed in a way that is fair and is seen to be fair.
1.5 It is the responsibility of judges to ensure that defendants, witnesses and victims are
treated fairly and that those accused of having committed a criminal offence receive a
fair trial. This involves ensuring that their rights are respected at all times, and that
only evidence which has been properly obtained should be admissible in court. It also
means ensuring that those responsible for upholding the law are themselves bound
by its strictures. This may involve taking an assertive role to ensure that all testimony
and evidence has been given freely and has not been obtained using coercive
means. Judges should at all times be alert to the possibility that defendants and
witnesses may have been subject to torture or other ill-treatment. If, for example, a
detainee alleges that he or she has been ill-treated when brought before a judge at
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the end of a period of police custody, it is incumbent upon the judge to record the the
allegation in writing, immediately order a forensic medical examination and take all
necessary steps to ensure the allegation is fully investigated. 17 This should also be
done in the absence of an express complaint or allegation if the person concerned
bears visible signs of physical or mental ill-treatment.
1.6 While legal systems vary in some respects in different parts of the world, the legal
prohibition of torture is universal. The primary role of judges in preventing acts of
torture, therefore, is to ensure that the law is upheld at all times.
The role of prosecutors
1.7 Judges and prosecutors can play significantly different roles in different criminal
justice systems – depending on whether these are based on an adversarial or
inquisitorial process. Many of the points regarding the role and responsibilities of
judges will also apply to prosecutors in many countries.
1.8 Prosecutors also have a particular responsibility to ensure that all evidence gathered
in the course of a criminal investigation has been properly obtained and that the
fundamental rights of the criminal suspect have not been violated in the process.
When prosecutors come into possession of evidence against suspects that they
know, or believe on reasonable grounds, was obtained through recourse to unlawful
methods, notably torture, they should reject such evidence, inform the court
accordingly, and take all necessary steps to ensure that those responsible are
brought to justice. 18 Any evidence obtained through the use of torture or similar illtreatment
can only be used as evidence against the perpetrators of these abuses. 19
1.9 In some jurisdictions it is necessary for prosecutors to request investigating judges to
act before the latter can initiate investigations. It is, therefore, essential that
prosecutors take this duty seriously when it involves the possible commission of the
crime of torture by law enforcement officials. Almost all jurisdictions oblige
prosecutors to pursue the perpetrators of criminal offences and this duty includes the
pursuit of law enforcement officials who may be accused of criminal offences, such
as committing acts of torture. In many jurisdictions there is no need for prosecutors to
receive a formal complaint before they can act to pursue evidence of a crime. Indeed
they frequently have a legal duty to take such action if information comes to their
attention in any way.
Safeguards during detention
1.10 Prosecutors and judges should ensure respect for the elements contained in the
following check-list of standards set out in the previous chapter. This check-list is
based on the safeguards in international law. However, international standards only
17 CPT/Inf/E (2002) 1, p. 14, para 45.
18 UN Guidelines on the Role of Prosecutors, Guideline 16.
19 The UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, Article 15.
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provide a basic minimum. Many states offer greater protection and these can also be
considered as models of good practice. Where these standards have not been
adhered to there is a particular risk that detainees may have been subject to torture
or other forms of ill-treatment. Failure to adhere to some of these standards may
also subsequently make it more difficult to identify and prosecute those responsible
for these acts:
Notifying people of their rights. All people deprived of their liberty have the
right to be told the reasons for their arrest or detention and what their rights are in
detention. They have the right to inform, or have the authorities notify, their family
or friends of the fact of the detention and the place where they are being held. If
the person is transferred to another place their family or friends must again be
informed. This notification should preferably take place immediately, or at least
without delay. People held in pre-trial detention should be given all reasonable
facilities to communicate with family and friends and to receive visits from them.
Use of officially recognised places of detention and the maintenance of
effective custody records. Everyone deprived of their liberty should be held in
places that are officially designated and publicly known. Interrogation should only
take place at official centres and any evidence obtained from a detainee in an
unofficial place of detention, and not confirmed during interrogation at official
locations, should be excluded as evidence in court – unless it is used as
evidence against an alleged torturer. Timely and accurate custody records, held
in publicly accessible registers, are an essential element in protecting people
against torture or ill-treatment. The authorities should keep and maintain up-todate
official registers of all detainees, both at each place of detention and
centrally. These records should include the names of detainees, their place of
detention and the identity of those responsible for their detention. Cells should be
numbered and the cell in which the detainee was placed should be recorded. A
complete record of all contact with the detainee should also be kept, including
requests that the detainee has made, responses by the authorities and decisions
taken in relation to the detainee. Custody records should be kept using means
where any tampering can be easily detected – such as bound books with prenumbered
pages and retained for a substantial period (i.e. several years).
Avoiding incommunicado detention. People are particularly at risk of torture
and ill-treatment when they are detained incommunicado – that is when a
detainee has no access to the outside world, to their family, lawyers or to
independent doctors. This risk increases the longer that they are held as it allows
a longer period for injuries to be inflicted and for the visible marks of these injuries
subsequently to fade. Judges should exercise any discretion that they have to
ensure restrictions and delays in granting detainees access to the outside world
are kept to the minimum.
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Access to a lawyer and respect for the functions of a lawyer. Detainees have
the right to access to legal advice without delay. They should be able to consult,
in private, with a lawyer while in custody, to have a lawyer present during any
interrogations and to have a lawyer represent them when they appear in court.
Lawyers should advise and represent their clients in accordance with professional
standards, free from intimidation, hindrance, harassment, or improper
interference from any quarter.
Access to a doctor. Detainees should be medically examined as soon as
possible after they are deprived of their liberty and at all stages of their detention.
They have an additional right to be examined by an independent and fully
qualified doctor of their choosing. Medical examinations should be conducted out
of the hearing, and preferably out of the sight, of police officers. The results of
every examination, as well as relevant statements by the detainee and the
doctor’s own conclusions, should be formally recorded by the doctor and made
available to the detainee and his or her lawyer.
Safeguards for special categories of detainees. All detained people have the
right to equal treatment without discrimination on the grounds of race, colour, sex,
sexual orientation, language, religion, political or other opinion, national or social
origin, property, birth or other status. Particular allowances should, however, be
made for the rights and needs of vulnerable detainees including women,
juveniles, elderly people, foreigners, ethnic minorities, people with different sexual
orientation, people who are sick, people with mental health problems or learning
disabilities, and other vulnerable groups or individuals. Some groups may be
targeted for discriminatory abuse by the staff of the institution where they are
detained. They may also be vulnerable to abuse from other detainees.
Interrogations
1.11 Prosecutors have a responsibility to ensure that they do not participate in
interrogations in which coercive methods are used to extract confessions or
information. They should also satisfy themselves that such methods are not used by
law enforcement officials in order to obtain evidence to bring criminal charges
against a suspect. Where a suspect or witness is brought before a prosecutor, the
prosecutor should ensure that any information or confession offered is being given
freely. The prosecutor should also explore for signs of physical or mental distress,
take all allegations of torture or other forms of ill-treatment seriously, and refuse to
return anyone to custody where he or she is at risk of such treatment.
1.12 The risk of torture and ill-treatment under interrogation is all the greater if the legal
system bases convictions mainly or substantially on confessions and on evidence
obtained in pre-trial detention – particularly when interrogations are conducted
without a detainee’s lawyer being present. In all circumstances, strict procedures
should be followed to ensure that interrogations are properly conducted and that
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abuses are not inflicted while a detainee is being questioned. It is particularly
important that the details of all interrogations are recorded and the interrogation itself
is transcribed. This information should also be available for the purposes of judicial
or administrative proceedings.
1.13 Prosecutors and judges should ensure respect for the elements contained within the
following check-list of good practice concerning interrogations, which is based on
recommendations by the CPT and the UN Special Rapporteur on Torture: 20
Interrogation should take place only at official centres and any evidence obtained
from a detainee in an unofficial place of detention and not confirmed by the
detainee during interrogation at official locations should not be admitted as
evidence in court against the detainee;
The detainee should have the right to have a lawyer present during any
interrogation;
At the outset of each interrogation, the detainee should be informed of the identity
(name and/or serial number) of all persons present;
The identity of all persons present should be noted in a permanent record which
details the time at which interrogations start and end and any request made by
the detainee during the interrogation;
The detainee should be informed of the permissible length of an interrogation; the
procedure for rest periods between interviews and breaks during an interrogation,
places in which interrogations may take place; and whether the detainee may be
required to stand while being questioned. All such procedures should be laid
down by law or regulation and be strictly adhered to;
Blindfolding or hooding should be forbidden as they can render the subject
vulnerable, involve sensory deprivation and may themselves amount to torture or
ill-treatment. They may also make prosecutions virtually impossible as it will be
more difficult to identify the perpetrators.
All interrogation sessions should be recorded or transcribed and the detainee or,
when provided by law, his or her counsel should have access to these records;
The authorities should have and should regularly review procedures governing
the questioning of persons who are under the influence of drugs, alcohol or
medicine or who are in a state of shock;
The situation of particularly vulnerable persons (for example, women, juveniles
and people with mental health problems) should be the subject of specific
safeguards.
20 CPT/Inf/E (2002) 1, p.10-16, para 33-50; Report of the Special Rapporteur on Torture, 2001, UN
Doc.A/56/156, July 2001, para 39.
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1.14 The electronic recording of interviews significantly helps reduce the risk of torture and
ill-treatment and can be used by the authorities as a defence against false allegations.
As a precaution against tampering with the recordings, one tape should be sealed in
the presence of the detainee and another used as a working copy. Adherence to such
procedures also helps to ensure that a country’s constitutional and legislative
prohibition of torture and ill-treatment is respected and verifiable.
1.15 The term ‘interrogation’ does not only refer to the time in which a person is being
formally questioned. It may include periods before, during and after the questioning
when physical and psychological pressures are applied to individuals to disorient them
and coerce them into compliance during formal questioning. All such practices must be
absolutely prohibited.
Independent inspections
1.16 Regular inspection of places of detention, especially when carried out as part of a
system of periodic visits, constitute one of the most effective preventive measures
against torture. The CPT has stated that it ‘attaches particular importance to regular
visits to each prison establishment by an independent body (e.g. a board of visitors
or supervisory judge), possessing powers to hear (and if necessary, take action on)
complaints from prisoners and to inspect the establishment’s premises. Such bodies
can inter alia play an important role in bridging differences that arise between prison
management and a given prisoner or prisoners in general.’ 21 It has also welcomed
the existence of mechanisms to inspect police premises as ‘making an important
contribution towards the prevention of ill-treatment of persons held by the police and,
more generally, of ensuring satisfactory conditions of detention in police stations’. 22
The Special Rapporteur on Torture has stated that ‘unannounced visits to police
stations, pre-trial detention facilities and penitentiaries’ provide one effective
safeguard against torture. 23
1.17 National law often requires members of the judiciary and/or prosecutors to carry out
inspections. Law enforcement officials, defence lawyers and physicians, as well as
independent experts and other representatives of civil society may also be involved
in inspections. Ombudsmen and national or human rights institutions, the
International Committee of the Red Cross (ICRC) and independent nongovernmental
organisations (NGOs) should also be authorised to have full access to
all places of detention on request.
1.18 Places of detention should be visited regularly – and without prior warning – and
every effort must be made to communicate directly and confidentially with people
being detained or imprisoned. Places to be visited include police lock-ups, pre-trial
detention centres, security service premises, administrative detention areas and
21 2nd General Report on the CPT’s Activities, 1991, para 54.
22 CPT/Inf/E (99) 1 (REV. 2), para 97.
23 Report of the Special Rapporteur on Torture, 2001, UN Doc.A/56/156, para 39(c).
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prisons. Inspection teams should be free to report publicly on their findings should
they choose to do so.
1.19 The Association for the Prevention of Torture (APT), which is a non-governmental
organisation, has produced a report, based on a number of CPT reports and
recommendations, concerning national visiting mechanisms. This contains the
following basic check-list for judges and prosecutors conducting inspections. 24
Independent. The visiting body should demonstrate its independence and
impartiality, distinct from the staff and administration of the place of detention. It
must make it clear that its only concern is to ensure that detention conditions are
humane and that detainees are treated justly.
Expert. Those involved in conducting inspections should have specific
knowledge and expertise regarding the particular kind of place of detention that
which they are involved in inspecting.
Direct and personal contact with detainees. The visiting body should strive to establish
direct contact with detainees during visits. Detainees who have not requested an interview
with the monitoring body should be chosen at random and interviewed as part of a regular
visit. Detainees should also have a right to register complaints, both within and outside of
the detention facility.
Confidential. The visiting body should be able to communicate with detainees out of
sight and hearing of the staff of the place of detention.
Regular. Weekly visits to prisons and other places of detention are most effective.
Monthly visits may be an acceptable alternative. Visiting bodies should be provided with
adequate time and resources to make visits with a regularity sufficient to ensure
effectiveness.
Unannounced. Visiting bodies should have, and exercise, the power to visit any place of
detention on any day and at any time that they choose.
All parts of the facility. The visiting body should have, and seek, access to all
parts of the facility.
Regular reports. The visiting body should make regular reports of their visits
available to relevant national institutions.
1.20 As well as talking to detainees and observing their physical condition, overall demeanour and
their relationship with the staff in the detention facility, members of the visiting body should
also be observant for any equipment or implements that could be used to inflict torture or illtreatment.
The staff of the detention facility should always be questioned about any such
items and detainees should also be questioned, separately from the staff.
Conditions of detention
24 CPT Recommendations Concerning National Visiting Mechanisms, The Association for the
Prevention of Torture, June 2000.
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1.21 While conditions of detention will vary, the CPT has provided a general check-list 25 of factors
that need to be considered when assessing the suitability of a place used for short-term
detention:
Cells should be clean, of a reasonable size for the number of persons they are used to
accommodate, and have adequate lighting (sufficient to read by, sleeping periods
excluded) and ventilation; preferably, cells should have natural light;
Cells should be equipped with a means of rest (a fixed chair or bench), and
persons obliged to stay overnight in custody should be provided with a clean
mattress and blankets;
Persons in custody should be allowed to comply with the needs of nature in clean
and decent conditions, and be offered adequate washing facilities;
Persons in custody should have ready access to drinking water and be given
food at appropriate times, including at least one full meal every day;
Those detained for extended periods, 24 hours or more, should be allowed to
take outdoor exercise.
These are to be regarded as minimum standards. Any further period in detention
should normally be in a facility designed for longer-term detentions where the
standards to be expected are more exacting. Deprivation of liberty in conditions
which do not meet these standards can amount to inhuman or degrading treatment in
contravention of international human rights law. 26
Blanchard & Others v Minister of Justice, Legal and Parliamentary Affairs & Anor,
Supreme Court, Zimbabwe, 9 July 1999, 1999 (10) BCLR 1169 (ZS), [2000] 1 LRC
671; (1999) 2 CHLRD 326 (Zimbabwe)
The applicants had been charged with several serious offences, including terrorism
and sabotage, and were detained in a high-security prison pending trial. They filed an
application to the Supreme Court alleging that the respondents had violated their
constitutional right not to be subject to torture or inhuman or degrading treatment by
detaining them in continuously lit, single, locked cells; forcing them to wear prison
clothing; stripping and shackling them in leg-irons each night, and preventing them
from receiving food from sources outside the prison.
In July 1999 the Supreme Court of Zimbabwe made a declaratory order that the
applicants’ cells should be left unlocked in the day, that the light in their cells should
be switched off at night time, and that while they remained unconvicted prisoners, the
applicants should be allowed to wear their own clothing and were entitled to receive
food from outside the prison.
25 CPT/Inf/E (2002) 1, p.8, para 42.
26 Peers v Greece, ECtHR, Judgment 19 April 2001; Kalashnikov v Russia, ECtHR, Judgment 15 July
2002.
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The Court considered international jurisprudence including the European Court of
Human Rights cases of Ireland v UK and Koskinen v Finland and specifically refered
to the UN Standard Minimum Rules for the Treatment of Prisoners. It condemned the
use by prison authorities of leg-irons and handcuffs, except for the prevention of
escape during transportation or to restrain violent behaviour in the absence of other
effective methods. It stated that although persons in custody do not possess the full
range of freedoms of unincarcerated individuals, any restraints imposed upon them
must be circumscribed and absolutely necessary. They must be measured against
the State’s sole objective of bringing the prisoner to trial, and be judged against a
standard of basic humanity towards persons innocent in the eyes of the law rather
than against abstract penological standards. Punishment, deterrence or retribution
are not compatible with the presumption of innocence. Although there may be special
circumstances in which it is permissible to subject a prisoner awaiting trial to more
severe treatment than other such prisoners, the onus is on the prison authorities to
justify such action. In the present case, the respondents had not alleged that the
applicants’ conduct posed a threat to prison security. Stripping the applicants and
shackling them in leg irons is, therefore, manifestly inhuman. Insisting on continuous
lighting was irrational and aimed to exacerbate the effect of the confinement by
making it as uncomfortable and severe as possible, particularly as the applicants
were, in effect, being held in solitary confinement.
The Court also stated that Zimbabwe’s Constitution aims to protect both the dignity and the
physical and mental integrity of the individual and this protection is similar to the provisions
of the European Convention on Human Rights and the International Covenant on Civil and
Political Rights. The prolonged duration of the ill-treatment endured by the applicants, and its
physical and mental effects upon them, had attained the minimum level of severity necessary
to constitute a violation of this right. It also commented that the constitutional prohibition on
torture and other ill-treatment was intended to protect persons from acts causing not only
physical but also mental suffering. The respondents were ordered to pay costs on the higher
scale as a mark of the Court’s disapproval of the arbitrary harshness of the treatment meted
out to the applicants.
Appearance before a judicial authority
1.22 All detained persons have the right to challenge the lawfulness of the detention. This is
sometimes referred to as a habeas corpus procedure, which means the delivering of the body
before the court. This can provide an important safeguard against torture as well as a means to
challenge arbitrary detentions – although sometimes judges restrict this procedure to ensuring
that the detention itself is lawful without giving sufficient weight as to whether the conditions
of the detention also fully comply with the law.
1.23 The application to challenge a detention may be made by the detainee or by someone acting
on his or her behalf. Such procedures must be acted on expeditiously. If it is within their
discretion to do so, judges should also require that the detainee is physically brought to court
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and that, while in court the detainee is able to communicate with his or her lawyer in
confidence.
1.24 Whenever a detainee is brought before them from custody, judges should be particularly
attentive to his or her condition. Where necessary, judges should routinely carry out a visual
inspection for any signs of physical injury – or order one to be carried out by a doctor. This
could involve a check for physical bruising that may be hidden under clothing. Many forms of
torture leave no visible marks and others are inflicted using methods that are difficult to
detect. Judges should, therefore, also be alert to other clues, such as the individual’s physical
and mental condition and overall demeanour, the behaviour of the police and guards involved
in the case and the detainee’s attitude towards them. Judges should actively seek to
demonstrate that they will take allegations of torture or ill-treatment seriously and will take
action where necessary to protect those at risk.
1.25 Where a suspect does not speak the language in which the trial is being conducted, the
requirements of a fair trial dictate that he or she must be provided with full interpretation
facilities. 27 This is also an important safeguard to ensure that all acts of torture and other
forms of ill-treatment are reported.
1.26 Those responsible for the security of courts and for guarding detainees during court
appearances should always be organisationally separate from, and independent of, those
guarding detainees in custody and those conducting investigations into the crime that the
detainee is suspected of committing. Remand prisoners are at particular risk if they are being
held by, or can be transferred back into, the custody of, the investigating authorities. While in
court the detainee should be held in a place that is physically separate from where the police
or investigating officers involved in the case are waiting. If there are any suspicions that an
individual has been subjected to torture, or other forms of ill-treatment, that individual must
be removed from the custody of his or her alleged torturers immediately.
1.27 In order to be alert to signs of torture or ill-treatment, judges need to give some consideration
to the physical lay-out of their courtrooms.
Legal assistance
Can the judge clearly see and hear the detainee at all times while he or she is in
the courtroom, sufficient to detect any visible signs of physical or mental injury?
Is the level of security in which the detainee is being held appropriate to any real
danger that he or she may pose?
Can the detainee communicate with his or her lawyer in confidence?
Can the detainee communicate to the court freely without any threat or
intimidation?
1.28 Judges should ensure that all defendants are aware of their right to call upon the assistance of
27 Article 14 (3)(f) International Covenant on Civil and Political Rights.
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a lawyer of their choice. Defence lawyers should be able to perform their professional
functions without intimidation, hindrance, harassment or improper interference, including the
right to consult with their clients freely. 28 They should not be identified with their clients or
their clients’ causes as a result of discharging their functions. Nor should they suffer, or be
threatened with, prosecution or administrative, economic or other sanctions for any action
taken in accordance with their professional duties, standards and ethics. Where the security of
lawyers is threatened as a result of discharging their functions, they should be adequately
safeguarded and protected by the authorities. 29
Admissibility of evidence
1.29 In many jurisdictions, judges play a crucial role in deciding what evidence should be heard in
the main trial, or before a jury, and what evidence should be deemed inadmissible. Clearly
evidence obtained through torture or other forms of ill-treatment must be deemed
inadmissible. 30 This will usually be specified in the national law – although some forms of
physical and mental ill-treatment are not always adequately covered in national legislation.
Unless the written law admits no other interpretation, judges should always interpret it in
ways that are consistent with international standards and best-practices regarding torture and
other forms of ill-treatment.
1.30 It is the duty of the court to ensure that evidence produced is admissible. It is, therefore,
incumbent on the judge to satisfy herself/himself that any confession or other evidence has
not been obtained through torture or other forms of ill-treatment. Even if no complaint is
made by the accused, the judge must be prepared to ask the prosecution to prove beyond
reasonable doubt that the confession was obtained voluntarily.
1.31 Evidence may be deemed admissible in a trial even though there is an allegation that it was
obtained through coercive means – as not all such claims will necessarily be accepted as
genuine. In some cases, judges may hold a separate hearing – or a ‘trial within a trial’ – into
such claims before deciding whether this evidence can be presented before the main court.
Where a trial is conducted with a jury, it may be excluded from this part of the proceedings.
However, there may also be cases where evidence is heard in the main trial which the defence
alleges was obtained through torture or other prohibited forms of ill-treatment. In any case
where such an allegation has been made, judges have a particular responsibility to ensure that
witnesses are properly examined about the allegation and that sufficient weight is given to this
during their deliberations and when summing up the case.
28
Human Rights Committee, General Comment 13, Article 14 (Twenty-first session, 1984),
Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty
Bodies, U.N. Doc. HRI\GEN\1\Rev.1 at 14 (1994), para. 9; Basic Principles on the Role of Lawyers,
principles 16-18.
29 Ibid.
30 Kelly v Jamaica, (253/1987), 8 April 1991, Report of the Human Rights Committee, (A/46/40), 1991;
Conteris v Uruguay, (139/1983), 17 July 1985, 2 Sel. Dec. 168; Estrella v Uruguay, (74/1980), 29
March 1983, 2 Sel. Dec. 93.
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Examining witnesses
1.32 Particular attention should be paid to any witness who appears to have suffered or witnessed
physical injuries or mental trauma while in custody. Such injuries or trauma may not
necessarily be the result of torture or other forms of ill-treatment and not all claims of such illtreatment
can be taken at face value. Nevertheless, appropriate allowance should be made for
the fact that a witness testifying about such acts may be particularly vulnerable, frightened or
disorientated. Care should be taken to ensure that the witness is not re-traumatised during
questioning and that the quality of his or her evidence suffers as little as possible because of
any particular vulnerabilities. Allowance should also be made for the fact that the witness
may be suffering from post-traumatic stress, or from a mental disability unrelated to the
alleged ill-treatment, and that this may affect his or her memory, communication skills, and
responses to perceived aggression during questioning.
1.33 The following practices should be adhered to during questioning and the reasons for this
explained to the court, where necessary:
Repeating questions. Questions may need to be repeated or rephrased as some
people can take longer to absorb, comprehend and recall information.
Keeping questions simple. Questions should be kept simple as some people may
experience difficulty in understanding and answering them. They may also have a
limited vocabulary and find it difficult to explain things in a way that others find
easy to follow.
Keeping questions non-threatening and open. Questions should be nonthreatening
as some people may respond to rough questioning either by
excessive aggression or by trying to please the questioner. Questions should
also be kept open as some people are prone to repeating information provided to
them or suggested by the interviewer.
1.34 Judges and prosecutors should also be aware that physical and mental torture and other forms
of ill-treatment may have been carried out within a particular social, cultural or political
specificity that the witness might find difficult to explain to the court. An action that might
seem trivial or harmless in one context could be deeply demeaning or traumatic in another. A
comment that might seem completely innocuous when repeated could easily have been
understood – and have been intended to be – a dangerous implied threat when it was first
made. This might be because of certain cultural sensitivities or taboos, such as ‘honour’ and
‘shame’. It might also be because certain social and political groups believe that the police
routinely behave in ways that others might find it very difficult to comprehend. For example,
coded threats may have been made against a witness, or a member of his or her family, by the
police which the witness has difficulty in explaining to the court. The judge should actively
draw out such nuances if the lawyers have failed to do so during their own questioning of
witnesses.
1.35 In many jurisdictions, where a prosecution witness is of doubtful character, there is a duty to
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disclose this to the defence. In some countries, law enforcement services or agencies may be
required to disclose the criminal or disciplinary records of individual officers so that the
defence may cross-examine them where their credibility is an issue. Where it is within their
discretion to do so, judges should ensure that the previous disciplinary or criminal offences on
the record of a law enforcement officer appearing as a prosecution witness, is disclosed to the
defence. This will be particularly important in any case where there is an allegation of torture
or ill-treatment if the officer has previously been disciplined of convicted of such behaviour.
It can also act as a disincentive to individual officers to engage in such practices as their value
as prosecution witnesses in subsequent cases will be undermined.
1.36 When a judge sums up, concludes a trial or delivers his or her reasoning it is important to
ensure that adequate weight has been given to allegations of torture and ill-treatment and to
the testimony of those who allege that it has taken place. Where the trial is being held before a
jury, it should be carefully explained why all forms of torture and ill-treatment are prohibited,
irrespective of the nature of the person alleging that they have been subjected to this, or any
crime that he or she may be suspected of committing. This will be particularly important in
cases where the person making the allegation is of a different race, sex, sexual orientation, or
nationality, has a different political or religious belief, or comes from a different social,
cultural or ethnic background from the majority of the jurors. It will also be important if the
person making the allegation is accused of a particularly serious or obnoxious crime.
1.37 In societies where a particular social group is generally perceived negatively, or where
members of this group are identified with particular types of crime, juries must be
discouraged from following their prejudices that lead them to conclude that the victim
‘deserved’ the torture or ill-treatment that he or she is alleged to have suffered. Equally where
other evidence in the trial points to the guilt of a particular defendant, juries must be
dissuaded from regarding allegations of torture or other forms of ill-treatment in a less serious
light – or concluding that the police were merely trying to ‘improve’ their case. In providing
direction as to the law to jurors, judges must always point out the total unacceptability of
torture and other forms of ill-treatment under all circumstances.
1.38 Judges should, however, also instruct the jury to give due weight to ‘cultural’ factors when
applying their ‘common sense’ to such allegations. While not applying prejudicial stereotypes
to particular groups – or instinctively finding the evidence of some more credible than that of
others – jurors should be guided towards attempting to understand the impact that various
forms of physical and mental ill-treatment might have on a victim from a different
background to their own.
Duty to protect in cases of expulsion
1.39 Judges may also, on occasion, be required to make decisions regarding the sending or return
of an individual to a situation where he or she faces a real risk of being tortured. This might
arise, for example, because of an extradition request or a challenge to a decision regarding an
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impending deportation.
1.40 The right of a person not to be sent to a country where there are substantial grounds for
believing that he or she would face a real risk of being subject to treatment that amounts to
torture or cruel, inhuman or degrading treatment or punishment is also well established in
human rights law. This right applies to all people and at all times. This right is recognised as
forming a part of the right to be protected against acts of torture and other prohibited forms of
ill-treatment contained in the International Covenant on Civil and Political Rights 1966, the
European Convention on Human Rights 1950, the American Convention on Human Rights
1978, the African Charter on Human and People’s Rights 1981, the UN Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 and the
European Convention for the Prevention of Torture and Inhuman and Degrading Treatment or
Punishment 1987.
1.41 Both the Human Rights Committee and the European Court have stated that exposing
someone to a ‘real risk’ of suffering inhuman or degrading treatment would violate their right
to protection against such acts. 31 The Human Rights Committee has stated that ‘States Parties
must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment
or punishment upon return to another country by way of their extradition, expulsion or
refoulement.’ 32 The European Court has stated that the absolute prohibition of torture and
other forms of ill-treatment applies irrespective of the victim’s conduct and cannot be
overridden by a state’s national interest or in dealing with suspected terrorists. 33 Even if the
threat emanates from private groups, such as armed insurgents or criminals, if the state
concerned is unable or unwilling to protect the individual from such treatment this would
amount to a violation. 34 In exceptional circumstances, the European Court has also found that
the lack of adequate medical facilities in the country to which someone is threatened with
return could amount to a violation of Article 3. 35 The Committee against Torture has also
requested states party to the Convention not to expel someone who can show a ‘real and
personal risk’ of being exposed to such treatment. 36 The Committee has stressed that this
protection is absolute, ‘irrespective of whether the individual concerned has committed crimes
31 Soering v UK, 1989, ECtHR, Series A, No. 161. See also Cruz Varas v Sweden, 1991, ECtHR
Series A no.201, Vilvarajah v UK, 1991, ECtHR Series A, No. 215, H.L.R. v France, 1997, EtCHR
Series A, D v UK, 1997, Judgment 2 May, Jabari v UK, 2000, Judgment 11 November. UN Human
Rights Committee decision on the communication Ng v Canada, (469/1991), Report of the Human
Rights Committee, Vol II, GAOR, 49th Session, Supplement No. 40 (1994), Annex IX CC; and Human
Rights Committee, General Comment 2, Reporting guidelines (Thirteenth session, 1981), Compilation
of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N.
Doc. HRI\GEN\1\Rev.1 at 3 (1994) para 3.
32 Human Rights Committee, General Comment 20, para 9.
33 Chahal v UK, ECtHR, 1996, Judgment 15 November.
34 Ahmed v Austria, ECtHR, Judgment 17 December 1996; H.L.R. v France, ECtHR, Judgment 29
April 1997.
35 D. v UK, ECtHR, Judgment 2 May 1997.
36 See for example: The Reports of the Committee Against Torture, Mutambo v Switzerland, (13/1993)
GAOR, 49th Session Supplement No.44 (1994) Khan v Canada, (15/1994), GAOR, 50th Session,
Supplement No.44 (1995).
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and the seriousness of these crimes.’ 37
1.42 The Convention Relating to the Status of Refugees 1951 and the 1967 Protocol, make specific
provision for refugees and these principles should also be upheld by domestic courts. The
most essential component of refugee status and of asylum is protection against return to a
country where a person has reason to fear persecution. This protection has found expression
in the principle of non-refoulement – the right of a person not to be returned to a country
where his or her life or freedom would be threatened – which is widely accepted by states.
The principle of non-refoulement has been set out in a number of international instruments
relating to refugees, both at the universal and regional levels.
1.43 The Convention Relating to the Status of Refugees provides, in Article 33(1), that: ‘No
Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the
frontiers of territories where his life or freedom would be threatened on account of his race,
religion, nationality, membership of a particular social group or political opinion.’ The
principle of non-refoulement constitutes one of the basic Articles of the 1951 Convention. It is
also an obligation under the 1967 Protocol to this Convention. Unlike various other
provisions in the Convention, its application is not dependent on the lawful residence of a
refugee in the territory of a contracting state. The principle also applies irrespective of
whether or not the person concerned has been formally recognised as a refugee – if this status
has yet to be determined. Because of its wide acceptance at universal level, it is being
increasingly considered as a principle of general or customary international law, and even jus
cogens, and so is binding on all states. Therefore no government should expel a person in
these circumstances.
SOURCE: Conor Foley, Combating Torture - A Manual for Judges and Prosecutors,
Human Rights Centre, University of Essex,
Available at http://www.essex.ac.uk/combatingtorturehandbook/english/index.htm
B) Prosecuting suspected torturers and providing redress to the victims
of torture
1.1 This chapter relates to the prosecution of those involved in torture and other forms of
ill-treatment. It outlines who may be held liable for such crimes and describes some
of the legal and procedural steps involved in prosecuting those responsible. Laws
and procedures will, obviously, vary in different jurisdictions. This chapter also
discusses the issues of amnesties and universal jurisdiction and highlights the
importance of providing redress to the victims of torture and other forms of illtreatment.
1.2 It primarily falls to states to enforce criminal laws. The role of judges and prosecutors in
enforcing these laws will also vary in different criminal justice systems. Torture and other forms
of ill-treatment are already prohibited by most domestic legal systems in the world. Even where
37 Ibid.
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there are no specific crimes of torture or ill-treatment in domestic law, there are usually other laws
under which the perpetrators can be held to account, such as crimes against the person. Where
such acts are committed by representatives of the state or law enforcement officials, however, this
should be considered an aggravating circumstance as the official is betraying the professional duty
that he or she is under to serve and protect the people of that state.
Torture as a criminal offence
1.3 The UN Convention against Torture provides that:
Each State Party shall ensure that all acts of torture are offences under its criminal
law. The same shall apply to an attempt to commit torture and to an act by any
person which constitutes complicity or participation in torture. Each State Party shall
make these offences punishable by appropriate penalties which take into account
their grave nature. 38
1.4 There are no exceptional circumstances that may be invoked to justify the use of
torture, nor may an order from a superior officer or a public authority be invoked as a
justification. 39 The Human Rights Committee has stated that: ‘States Parties should
indicate when presenting their reports the provisions of their criminal law which
penalize torture and cruel, inhuman and degrading treatment or punishment,
specifying the penalties applicable to such acts, whether committed by public officials
or other persons acting on behalf of the State, or by private persons. Those who
violate article 7, whether by encouraging, ordering, tolerating or perpetrating
prohibited acts, must be held responsible. Consequently, those who have refused to
obey orders must not be punished or subjected to any adverse treatment.’ 40
1.5 The Inter-American Convention to Prevent and Punish Torture states that: ‘The
States Parties shall ensure that all acts of torture and attempts to commit torture are
offences under their criminal law and shall make such acts punishable by severe
penalties that take into account their serious nature.’ 41 It also states that ‘A public
servant or employee who acting in that capacity orders, instigates or induces the use
of torture, or who directly commits it or who, being able to prevent it, fails to do so,
will be held guilty of the crime of torture. A person who, at the instigation of a public
servant or employee, orders, instigates, or induces the use of torture, directly
commits it or is an accomplice to such acts will also be held guilty of the crime.’ 42
Culpability for crimes of torture or other forms of ill-treatment
38 Article 4, UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment 1984.
39 Article 2, ibid. This principle was also enshrined in the Charter of the Nuremberg and Tokyo
Tribunals 1946, and subsequently reaffirmed by the UN General Assembly. It can also be found in the
Statutes of the international criminal tribunals for Rwanda and the former Yugoslavia and, with minor
modification, in the Statute of the International Criminal Court.
40 Human Rights Committee General Comment 20, para 13.
41 Article 6, Inter-American Convention to Prevent and Punish Torture 1985.
42 Article 3, ibid.
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1.6 When the state deprives a person of liberty, it assumes a duty of care to maintain the
person’s safety and safeguard the person’s welfare. This places an obligation on all
those responsible for the deprivation of liberty and the care of the detainee. 43 Where
an act of torture or other form of ill-treatment has taken place the prosecutor should
consider bringing charges against all those who failed to fulfil this obligation.
1.7 Culpability will extend to anyone in a responsible position within the institution in
which the detainee was being held who knew or ought to have known that torture or
ill-treatment was being perpetrated and failed to act to prevent it or report it. This
could include police station commanders and their deputies, custody officers, and
doctors or medical personnel, as well as other officers and staff in the place of
detention. It might also include prosecutors and judges or others responsible for
inspecting places of detention if they knowingly ignored or disregarded evidence that
torture or other forms of ill-treatment was being perpetrated in the places that they
visited – or on people who had been brought before them.
1.8 To prove responsibility a prosecutor will generally need to show that the defendant
committed, or attempted to commit the crime, whether as an individual, jointly with
another or through another person; ordered, solicited or induced the commission of
the crime or attempted crime; aided, abetted or otherwise assisted in its commission
or its attempted commission; or in any other way contributed to the commission of
the crime or attempted crime. This could involve an individual participating directly in
the torture or ill-treatment, assisting it in some way which had a substantial effect on
the perpetration of the crime, or ordering it to be carried out. It could also involve
failing to prevent it from being carried out by people over whom the person had
command or management responsibility, where that person either knew, or owing to
the circumstances at the time, should have known, that the torture or ill-treatment
was taking place and failed to take all necessary and reasonable measures to
prevent it or to submit the matter to the competent authorities for investigation and
prosecution.
1.9 Failure to report criminal activity, even where the individual is not directly or indirectly
responsible for the crimes being committed is also generally regarded as a criminal
offence – albeit of a less serious nature.
Identifying and prosecuting those responsible
1.10 Criminal charges will usually need to be brought against identified individuals. This
may prove difficult in cases of torture, or other forms of ill-treatment, as those
responsible may have concealed their identity from the victim and be able to rely on
either a protective ‘wall of silence’ from their colleagues – or even their active
collusion in concocting a false story. Even if the victim has identified them,
43 Human Rights Committee, General Comment 21, Article 10 (Forty-fourth session, 1992),
Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty
Bodies, U.N. Doc. HRI\GEN\1\Rev.1 at 33 (1994), para. 3.
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perpetrators may argue that it is ‘one person’s word against another’ and that this is
insufficient to prove guilt.
1.11 Where an individual officer has been identified by name, by physical description, or
through a serial or personal identification number, it should be possible to trace the
officer through the official records. If the victim has been held at an officially
recognised place of detention then the custody records should identify those
responsible for the detention and anyone else who came into contact with the victim
during this period. Other records held at police stations and detention facilities may
also contain relevant information. This could include: duty records and parade books
(indicating which officers are on duty in a particular station); message pads and radio
logs (recording all telephone and radio communications in a particular station); and
crime reports and notebooks (recording specific action taken by individual officers in
the course of their duties). If properly kept and preserved this information can help to
piece together evidence that could lead to the successful identification of someone
accused of torture. It may also help to corroborate or disprove a particular allegation.
1.12 Where there are no independent witnesses, prosecutors may believe that the
chances of a conviction are not high enough to justify taking a case. Some believe
that if the evidence is simply one person’s word against another, then the required
standard of proof for criminal conviction (‘beyond reasonable doubt’, ‘intime
conviction’, etc.) can never be satisfied. The assumption that a law enforcement
officer accused of committing a crime in the course of his or her duties may stand a
better chance of subsequently being acquitted than the average criminal defendant
may also make some prosecutors reluctant to pursue a case. However, these factors
need to be balanced against the public interest served in ensuring that those in
positions of authority do not abuse it and this may justify bringing a prosecution even
in cases where there is a greater likelihood of acquittal than would usually be the
case. Where there is strong evidence that someone has suffered prohibited forms of
ill-treatment in custody, and strong evidence that an identified officer, or group of
officers, was present at the time of this ill-treatment, they could either be charged
jointly with carrying out or aiding and abetting the ill-treatment or individually with
failing to protect someone in their care.
1.13 Where there is no dispute that an identified officer has used force that resulted in a
detainee suffering injury, the issue is likely to hinge on whether – if the alleged victim
was not under the officer’s control – the force was necessary, reasonable or
proportionate. Laws governing the use of force on detainees will vary in different
countries. However, the prohibition of torture is absolute. Neither the dangerous
character of a detainee, nor the lack of security in a detention facility can be used to
justify torture. 44 According to international standards, force may only be used on
44 Article 2, the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment. See also The Reports of the Committee Against Torture, Mutambo v Switzerland
(13/1993) GAOR, 49th Session, Supplement No.44 (1994); Khan v Canada (15/1994), GAOR, 50th
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people in custody when it is strictly necessary for the maintenance of security and
order within the institution, in cases of attempted escape, when there is resistance to
a lawful order, or when personal safety is threatened. In any event, force may be
used only if non-violent means have proved ineffective. 45
1.14 Criminal charges should also be brought against those in positions of responsibility
who either knew or consciously disregarded information which indicated that their
subordinates were committing crimes of torture or ill-treatment and failed to take
reasonable measures to prevent it or report this. Where patterns of torture or illtreatment
emerge or there has been systematic failure to prevent them or hold the
perpetrators to account, this could be taken as evidence that those in authority are
effectively condoning such practices.
1.15 The presumption that the injuries a detainee has suffered were the result of torture or
other prohibited forms of ill-treatment may be rebutted if a plausible alternative
explanation exists, but it is for the authorities and alleged perpetrators to demonstrate
convincingly that allegations are unfounded. Given the difficulties of proving
allegations of torture, in the circumstances of detention, appropriate weight should
also be given to corroborative evidence. Judges should not make the standard of
proof so high that it cannot be realistically discharged. This is especially important
when dealing with claims for redress (see below). Factors that should be taken as
corroborative evidence that an allegation of torture is well-founded may include:
• where a detainee has been held at an unofficial or secret place of detention;
• where a detainee has been held incommunicado for any period of time;
• where a detainee has been held for a long period in isolation or solitary
confinement;
• where proper custody records have not been maintained or where significant
discrepancies exist in these records;
where a detainee has not been fully informed of his or her rights at the start of the
detention and before any interrogation;
where a detainee has been denied early access to a lawyer;
where a foreign national detainee has been denied consular access;
where a detainee has not been subject to an immediate medical examination and
regular examinations thereafter;
where medical records have not been fully kept or have been improperly
interfered with or falsified;
Session, Supplement No.44 (1995); and Ireland v UK, ECtHR Series A 25, (1978); Chahal v UK,
ECtHR Judgment 15 November 1996; Tomasi v France, ECtHR Series A, No. 241-A (1993);
Selmouni v France, ECtHR Judgment 28 July 1999.
45 Rule 54, Standard Minimum Rules for the Treatment of Prisoners; Principles 4, 5 and 9, Basic
Principles on the Use of Force and Firearms by Law Enforcement Officials.
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where statements have been taken by the investigating authorities without a
lawyer being present;
where the circumstances in which statements were taken have not been properly
recorded and the statements themselves were not fully transcribed
contemporaneously;
where statements have been subsequently improperly altered;
where a detainee has been blindfolded, hooded, gagged, manacled or subject to
other physical restraint, or been deprived of their own clothes, without reasonable
cause, at any point during the detention;
where independent visits to the place of detention by bona fide human rights
organisations, established visitor schemes or experts have been blocked,
delayed or otherwise interfered with.
R v Fryer, Nichol, Lawrie EWCA Crim 825 Court of Appeal Criminal Division, Royal Courts of
Justice, Tuesday 19th March 2002 (United Kingdom)
On 15 March 1998, a prisoner at Wormwood Scrubs prison, was subjected to serious
and sustained assaults by three prison officers in the segregation unit at the prison.
The prisoner, the complainant in this case, had been taken for a strip search and was
then taken down to the segregation unit. He was slapped across the face, then grabbed by
the neck, arms and legs and taken from the cell to an open area, in the centre of the block
where he was thrown to the floor. He suffered two separate assaults during which he was
punched and kicked repeatedly while he lay on the floor until he was visibly bleeding. He
was then carried back to the cell and kicked from behind into the cell wall. The officers
subsequently fabricated bogus complaints against the prisoner, which resulted in him being
placed in solitary confinement and losing remission from his sentence. A number of other
prisoners complained of similar ill-treatment at around the same time and criminal charges
were eventually brought against 27 prison officers in connection with 13 separate
complainants of ill-treatment and assaults, some of which were said to amount to torture.
On 14 September 2001 three prison officers were convicted in relation to the above
case and received sentences of three-and-a-half to four years imprisonment. In upholding
the sentences the Court of Appeal stated that there were ‘special and aggravating
circumstances’ in the case, including the seriousness of the assault and the fact that it was
not an isolated assault but a sustained and repeated assault after an interval. The Court also
stated that: ‘Prisoners are entitled to the protection of the law, from assaults on them by
prison officers. Society is entitled to the proper discharge of the onerous responsibilities
which prison officers undertake. They are heavy responsibilities. But more than that too,
these appellants did not take the opportunity they could have taken at an early stage and by
this we mean the very earliest stage where they could have accepted responsibility for what
they did. They attempted, by bogus charges and disciplinary proceedings, to salvage their
own situation.’
275

The obligation to prosecute
1.16 Article 5 of the Convention against Torture obliges states that have ratified it to ‘take
such measure as may be necessary to establish its jurisdiction over the offences
referred to in Article 4 in the following cases:
a) When the offences are committed in any territory under its jurisdiction or on board
a ship or aircraft registered in that State
b) When the alleged offender is a national of that State
c) When the victim is a national of that State if that State considers it appropriate’.
1.17 It further obliges states to ‘take such measure as may be necessary to establish
jurisdiction over such offences in cases where the alleged offender is present in any
territory under its jurisdiction’, if it does not extradite the person to another state. This
obligation is regardless of where the crime was committed, the nationality of the
victim and the nationality of the alleged perpetrator. Article 7 of the Convention
requires states ‘under whose jurisdiction a person alleged to have committed any
offence referred to in article 4 is found shall in the cases contemplated in article 5, if it
does not extradite him, submit the case to its competent authorities for the purpose of
prosecution.’ The ‘try or extradite’ obligation under the Convention against Torture
applies to territories subject to the jurisdiction of the state party, which includes any
territory over which it has effective control. The Inter-American Convention to Prevent
and Punish Torture also obliges every state party to try or extradite people found
‘within the area under its jurisdiction,’ regardless of where the crime was committed
or the nationality of victim and alleged perpetrator.’ 46
1.18 The four Geneva Conventions also require states to exercise universal jurisdiction in
respect of ‘grave breaches’ of the Convention and bring cases before their own
national courts. The Conventions require states parties to search for people alleged
to have committed or ordered grave breaches of the Conventions, such as torture
and inhuman treatment, or who have failed in their duties as commanding officers to
prevent such grave breaches occurring. The ‘search and try’ obligation is without
frontiers under the Geneva Conventions.
1.19 States which are not bound by any of these Conventions are still permitted to
exercise universal jurisdiction if an alleged foreign perpetrator of torture is found on
their territory as general or customary international law permits the exercise of
universal jurisdiction over torture. Judges and prosecutors have a particularly
important role to play in ensuring that these obligations are fulfilled with respect to the
prosecution of people suspected of committing acts of torture or ancillary crimes.
46 Article 12, Inter-American Convention to Prevent and Punish Torture.
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Fair trials
1.20 Judges and prosecutors must ensure that the trials of people accused of torture and
ancillary crimes are conducted fairly under national and international law and fully
respect the rights of suspects and the interests of victims and their families. Suspects
must have the right to legal advice and assistance of their own choice, at all stages of
the criminal proceedings. National courts should also protect victims, witnesses and
their families – including the provision of effective security. Such protection measures
should not prejudice the right of suspects to a fair trial, including the right to crossexamine
witnesses. This right should not, however, be permitted to be exercised in
such a way as to intimidate or re-traumatise alleged victims or witnesses.
1.21 Where trials are conducted under universal jurisdiction, particular arrangements may
need to be made to bring witnesses from overseas or to arrange video-link facilities,
where these are available, to enable them to give evidence. Full interpretation
facilities must also be provided where necessary.
Immunities, amnesties and statutes of limitation
1.22 The judiciary has a duty to carry out, within their realm of jurisdiction, the international
obligations to investigate, bring to justice and punish the perpetrators of crimes of
torture. No one should be allowed to claim exemption from this because of their
official capacity. Amnesties and other similar measures which prevent the
perpetrators of gross human rights violations, such as torture, from being brought
before the courts, tried and sentenced are incompatible with state obligations under
international human rights law, including the obligations to investigate, bring to justice
and punish those responsible for gross human rights violations.
1.23 The Statute of the International Criminal Court specifies that it ‘shall apply equally to
all persons without any distinction based on official capacity. In particular, official
capacity as a Head of State or Government, a member of a Government or
parliament, an elected representative or a government official shall in no case
exempt a person from criminal responsibility under this Statute, nor shall it, in and of
itself, constitute a ground for reduction of sentence. 47 Immunities or special
procedural rules which may attach to the official capacity of a person, whether under
national or international law, shall not bar the Court from exercising its jurisdiction
over such a person.’ 48 It further states that: ‘The crimes within the jurisdiction of the
Court shall not be subject to any statute of limitations.’ 49 Although Protocol II to the
four Geneva Conventions proposes that states should grant ‘the broadest possible
amnesty’ to persons who have participated in an armed conflict following the end of
47 Article 27(1), Statute of the International Criminal Court.
48 Article 27(2), ibid.
49 Article 29, ibid.
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hostilities, this is not believed to have been intended to provide immunity for acts
amounting to war crimes. 50
1.24 The Human Rights Committee has also stated: ‘The Committee has noted that some
States have granted amnesty in respect of acts of torture. Amnesties are generally
incompatible with the duty of states to investigate such acts; to guarantee freedom
from such acts within their jurisdiction; and to ensure that they do not occur in the
future. States may not deprive individuals of the right to an effective remedy,
including compensation and such full rehabilitation as may be possible.’ 51 It has
stressed that these types of amnesty help to create a climate of impunity for the
perpetrators of human rights violations and undermine efforts to re-establish respect
for human rights and the rule of law. 52 The Vienna Declaration of the World
Conference on Human Rights called on states to ‘abrogate legislation leading to
impunity for those responsible for grave violations of human rights such as torture
and prosecute such violations, thereby providing a firm basis for the rule of law.’ 53
1.25 The Inter-American Court of Human Rights has stated that ‘it is unacceptable to use
amnesty provisions, statutes of limitations or measures designed to remove criminal
liability as a means of preventing the investigation and punishment of those
responsible for gross violations of human rights such as torture, summary, extra-legal
or arbitrary executions and disappearances, all of which are prohibited as breaches
of non-derogable rights recognized under international human rights law.’ 54
1.26 Where it is within their discretion to do so, courts should, therefore, refrain from
enforcing laws which are contrary to a state’s international obligations and in breach
of internationally-protected human rights, and declare them to be null and void.
1.27 Truth commissions often play an important role in establishing an authoritative record
of the past and in providing victims with a platform to tell their stories and obtain
redress. But truth commissions are not a substitute for justice in the form of full and
fair prosecutions. Where truth commissions are established, they should respect due
process, establish the truth, facilitate reparations to victims and make
recommendations designed to prevent a repetition of the crimes. They should also
operate alongside the courts in bringing perpetrators to justice and not be used as an
alternative.
Causa No. 8686/2000 caratulada ‘Simón, Julio, Del Cerro, Juan s/Sustracción de menores de 10 año’
del registro de la Secretaría Nro. 7 de este Antonio Juzgado Nacional en lo Criminal y Correccional
Federal No. 4, 6 March 2001 (Argentina)
50 Article 6.5, Additional Protocol II 1977 to the Geneva Conventions of 1949.
51 Human Rights Committee General Comment 20, para 15.
52 Concluding Observations of the Human Rights Committee: Argentina, 5 April 1995, UN Doc
CCPR/C/79/Add.46; A/50/40, para 146.
53 Vienna Declaration and Programme of Action, World Conference on Human Rights, Vienna 14-25
June 1993, UN Doc. A/CONF.157/23 12 July 1993, para 60.
54 Case of Barrios Altos (Chumbipuma Aguirre and others v Peru), Inter-Am Ct.H.R., Judgment 14
March 2001, para 41.
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In March 2001 a federal judge in Argentina ruled that the Punto Final Law and the
Law of Due Obedience, which granted immunity from prosecution for human rights violations
committed under the military government, were unconstitutional and void. This ruling related
to criminal prosecutions regarding the ‘disappearance’ in 1978 of José Liborio Poblete Roa,
his wife, Gertrudis Marta Hlaczik, and their daughter. In November 2001, the Federal
Appeals Court upheld the decision.
Actuaciones Sumariales registradas bajo el No. 13.445/1999, caratuladas: "Videla
Jorge Rafael y otros s/Privación Ilegal de la Libertad Personal" del registro de ésta
Secretaria No.14, pertenecientes al Juzgado Nacional en lo Criminal y Correccional Federal
No.7, 20 July 2001, (Argentina)
In June and July 2001, a federal judge issued three judicial decisions indicting and
requesting the arrest of a number of former members of the armed forces of Argentina,
Chile, Paraguay and Uruguay for their involvement in a criminal plan characterized by a
systematic pattern of forced disappearances known as ‘Operation Condor’. In his decision
the judge ordered the trial and preventive arrest of the former President Jorge Rafael Videla.
The judge also requested the provisional arrest, pending requests for extradition, of former
Chilean President Augusto Pinochet. In December 2001, in a separate decision, the judge
requested the provisional arrest pending requests for extradition of the former Bolivian
President, Hugo Banzer Suárez.
Punishment
1.28 Punishment for crimes of torture will be determined by domestic law. However, the
Convention against Torture states that states parties ‘shall make these offences punishable by
appropriate penalties which take into account their grave nature.’ 55 As well as involving acts of
physical or mental violence, these crimes are often an abuse of authority and a betrayal of public
trust. Where it is in their discretion to do so, judges and prosecutors should, therefore, ensure that
acts of torture are treated as such. If the law has no crime by that name, or the facts cannot fit
within a national definition that is narrower than the international definition, then the next most
serious category of crime covering the facts should be invoked. This is so as to ensure that the
court hands down a sentence commensurate with the gravity of the facts and to ensure that the
premature application of periods of prescription (statutes of limitation) is avoided.
Redress
1.29 Judges and prosecutors should, to the maximum extent allowed by national law, also
ensure that everyone who has suffered torture and other unlawful acts is aware of
their right to claim compensation for moral and physical suffering and help to create
the necessary conditions for them actually to benefit from this right. Victims of torture
and ill-treatment have the right to know the truth about what happened to them, to
see those responsible being brought to justice and to have reparations awarded for
the harm done to them.
55 UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
1984, Article 4.
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1.30 The Special Rapporteur on the Right to Restitution, Compensation and Rehabilitation
for Victims of Gross Violations of Human Rights, Cherif Bassiouni, attached draft
basic principles and guidelines on the right to a remedy and reparation for victims of
violations of international human rights and humanitarian law (the Van Boven-
Bassiouni Principles) in his final report to the UN Commission on Human Rights in
2000. 56 The Van Boven-Bassiouni Principles, which are contained in Appendix One
of this manual, acknowledge the following forms of reparation:
Restitution: steps should be taken to restore the victim to the situation he or she
was in before the violation occurred, including restoration of his or her legal
rights, social status, family life, place of residence, property and employment;
Compensation: steps should be taken to compensate for any economically
assessable damage resulting from violations including physical or mental harm,
emotional distress, lost educational opportunities, loss of earnings, legal and/or
medical costs;
Rehabilitation: steps should be taken to ensure medical and psychological care
if necessary as well as legal and social services;
Satisfaction and guarantees of non-repetition: steps should be taken to
ensure cessation of continuing violations, public disclosure of truth behind
violations, official declaration of responsibility and/or apologies, public
acknowledgement of violations, as well as judicial or administrative sanctions,
and preventive measures including human rights training.
1.31 Sometimes victims need expensive long-term medical care or therapy. Sometimes
they are unable to work as a result of their experiences or they find their lives
fundamentally altered in other ways. If torture has been inflicted by state agents, or
with their acquiescence, the state must, as far as possible, repair the harm that it has
done. Where it is within their discretion, judges should ensure that victims of torture
receive redress that fully reflects the grave and serious nature of the crime to which
they have been subjected. If the victim dies as a result of torture, the person’s
dependents are entitled to redress.
1.32 The Special Rapporteur on the Question of Impunity, Louis Joinet, elaborated a set
of principles for the protection and promotion of human rights through action to
combat impunity in his 1997 report to the UN Commission on Human Rights (the
Joinet Principles). 57 These principles include:
Principle 33. Rights and duties arising out of the obligation to make
reparation. Any human rights violation gives rise to a right to reparation on the
part of the victim or his or her beneficiaries, implying a duty on the part of the
56 UN Doc. E/CN.4/2000/62, 18 January 2000.
57 UN Doc. E/CN.4/Sub.2/1997/20/Rev.1, 2 October 1997.
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state to make reparation and the possibility for the victim to seek redress from the
perpetrator.
Principle 34. Reparation procedures. All victims shall have access to a readily
available, prompt and effective remedy in the form of criminal, civil, administrative
or disciplinary proceedings … In exercising this right they shall be afforded
protection against intimidation and reprisals. Exercise of the right to reparation
includes access to the applicable international procedures.
Principle 35. Publicising reparation procedures. Ad hoc procedures enabling
victims to exercise their right to reparation should be given the widest possible
publicity by private as well as public communication media. Such dissemination
should take place both within and outside the country, including through consular
services, particularly in countries to which large numbers of victims have been
forced into exile.
Principle 36. Scope of the right to reparation. The right to reparation shall
cover all injuries suffered by the victim; it shall include individual measures
concerning the right to restitution, compensation and rehabilitation, and general
measures of satisfaction... In the case of forced disappearances, when the fate of
the disappeared person has become known, that person’s family has the
imprescriptible right to be informed thereof and, in the event of decease, the
person’s body must be returned to the family as soon as it has been identified,
whether the perpetrators have been identified, prosecuted or tried or not.
P v Marksman & Anor, St Vincent & the Grenadines, High Court, 13 April 1999, [2000]
1 LRC 1, (1999) 2 CHRLD 430, (St Vincent & the Grenadines)
P, a prisoner, successfully applied to the High Court for a declaration that the
Superintendent of Prisons had violated his constitutional right not to be subjected to torture
or to inhuman or degrading punishment by ordering him to be flogged with a Cat-o-nine tails
and to be shackled in solitary confinement for an extended period of time.
In July 1997 the Court held that flogging with a Cat-o-nine tails (as a punishment for
attacking a prison guard) contravened the Constitutional prohibition on torture and other
forms of ill-treatment. Citing earlier cases in Zimbabwe and South Africa with approval, the
Judge held that: ‘Such flogging is incompatible with the standards of decency that are
expected of the Prison Service. It brutalises not only the person being flogged, but also it
brutalises the society that permits it. It breeds hatred and bitterness of the law and of society.
Flogging with a Cat-o-nine tails meets the definition of torture found at Article 1 of the UN
Declaration on the Prevention of Crime and the Treatment of Offenders... Today, let the Cato-nine
tail whip of the Male Prison in St Vincent take its place in the prison museum along
with such other instruments as the rack, the whipping post, the thumb screw, and the body
cage in which rebellious West Indians were once suspended until they had starved to death.’
The Court held that the liability of the state to pay compensation for breaches of
constitutional rights is based on its primary liability for its wrongful action, and not on a
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vicarious liability for torts committed by its servants. Exemplary damages are payable for
high-handed and oppressive conduct by officers of the state. In assessing the exemplary
damages a Court should take account of the injury the plaintiff has endured to his or her
dignity and pride, mental suffering and loss of reputation. Awards for exemplary damages
must balance the competing interests of the state in preserving law and order and the citizen
in not having his or her constitutional rights violated. In view of the considerable pain and
suffering suffered by the applicant, the assault on his dignity and the distress,
inconvenience, disgrace and humiliation caused to him, the applicant was awarded
compensatory damages. Pursuant to their broad discretion to enforce constitutional rights
under the Constitution, the Courts may, inter alia, initiate legal proceedings against public
officials responsible for breaches of constitutional rights, award damages against them or
subject them to disciplinary proceedings. In view of the failure of both the state and the
Superintendent of Prisons to make a written apology for violating P’s constitutional rights, P
was also awarded exemplary damages. The Court further ordered disciplinary proceedings
to be instituted against the Superintendent of Prisons.
SOURCE: Conor Foley, Combating Torture - A Manual for Judges and Prosecutors,
Human Rights Centre, University of Essex,
Available at http://www.essex.ac.uk/combatingtorturehandbook/english/index.htm
VI. HUMAN RIGHTS DEFENDERS
1. Who are human rights defenders
“Human rights defender” is a term used to describe people who, individually or with others,
act to promote or protect human rights. Human rights defenders are identified above all by
what they do and it is through a description of their actions (section A below) and of some of
the contexts in which they work (section B below) that the term can best be explained. [1] The
examples given of the activities of human rights defenders are not an exhaustive list.
A. What do human rights defenders do?
1. All human rights for all
To be a human rights defender, a person can act to address any human right (or rights) on
behalf of individuals or groups. Human rights defenders seek the promotion and protection of
civil and political rights as well as the promotion, protection and realization of economic,
social and cultural rights.
Human rights defenders address any human rights concerns, which can be as varied as, for
example, summary executions, torture, arbitrary arrest and detention, female genital
mutilation, discrimination, employment issues, forced evictions, access to health care, and
toxic waste and its impact on the environment. Defenders are active in support of human
rights as diverse as the rights to life, to food and water, to the highest attainable standard of
health, to adequate housing, to a name and a nationality, to education, to freedom of
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movement and to non-discrimination. They sometimes address the rights of categories of
persons, for example women’s rights, children’s rights, the rights of indigenous persons, the
rights of refugees and internally displaced persons, and the rights of national, linguistic or
sexual minorities.
2. Human rights everywhere
Human rights defenders are active in every part of the world: in States that are divided by
internal armed conflict as well as States that are stable; in States that are non-democratic as
well as those that have a strong democratic practice; in States that are developing
economically as well as those that are classified as developed. They seek to promote and
protect human rights in the context of a variety of challenges, including HIV/AIDS,
development, migration, structural adjustment policies and political transition.
3. Local, national, regional and international action
The majority of human rights defenders work at the local or national level, supporting respect
for human rights within their own communities and countries. In such situations, their main
counterparts are local authorities charged with ensuring respect for human rights within a
province or the country as a whole. However, some defenders act at the regional or
international level. They may, for example, monitor a regional or worldwide human rights
situation and submit information to regional or international human rights mechanisms,
including the special rapporteurs of the United Nations Commission on Human Rights and
United Nations treaty bodies. [2] Increasingly, the work of human rights defenders is mixed,
with the focus being on local and national human rights issues, but with defenders making
contact with regional and international mechanisms which can support them in improving
human rights in their countries.
4. Collecting and disseminating information on violations
Human rights defenders investigate, gather information regarding and report on human
rights violations. They may, for example, use lobbying strategies to draw their reports to the
attention of the public and of key political and judicial officials to ensure that their
investigative work is given consideration and that human rights violations are addressed.
Most commonly, such work is conducted through human rights organizations, which
periodically publish reports on their findings. However, information may also be gathered and
reported by an individual focusing on one specific instance of human rights abuse.
5. Supporting victims of human rights violations
A very large proportion of the activities of human rights defenders can be characterized as
action in support of victims of human rights violations. Investigating and reporting on
violations can help end ongoing violations, prevent their repetition and assist victims in
taking their cases to courts. Some human rights defenders provide professional legal advice
and represent victims in the judicial process. Others provide victims with counselling and
rehabilitation support.
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6. Action to secure accountability and to end impunity
Many human rights defenders work to secure accountability for respect for human rights
legal standards. In its broadest sense, this might involve lobbying authorities and advocating
greater efforts by the State to implement the international human rights obligations it has
accepted by its ratification of international treaties.
In more specific instances, the focus on accountability can lead human rights defenders to
bear witness, either in a public forum (for example, a newspaper) or before a court or
tribunal, to human rights violations that have already occurred. In this way, defenders
contribute to securing justice on behalf of victims in specific cases of human rights violation
and to breaking patterns of impunity, thereby preventing future violations. A significant
number of defenders, frequently through organizations established for the purpose, focus
exclusively on ending impunity for violations. The same groups of defenders might also work
to strengthen the State’s capacity to prosecute perpetrators of violations, for example by
providing human rights training for prosecutors, judges and the police.
7. Supporting better governance and government policy
Some human rights defenders focus on encouraging a Government as a whole to fulfil its
human rights obligations, for example by publicizing information on the Government’s record
of implementation of human rights standards and monitoring progress made. Some
defenders focus on good governance, advocating in support of democratization and an end
to corruption and the abuse of power, and providing training to a population on how to vote
and why their participation in elections is important.
8. Contributing to the implementation of human rights treaties
Human rights defenders make a major contribution, particularly through their organizations,
to the material implementation of international human rights treaties. Many nongovernmental
organizations (NGOs) and intergovernmental organizations help to establish
housing, health care and sustainable income-generation projects for poor and marginalized
communities. They offer training in essential skills and provide equipment such as
computers to give communities improved access to information.
This group merits particular attention as its members are not always described as human
rights defenders and they themselves may not use the term “human rights” in a description
of their work, focusing instead on terms such as “health”, “housing” or “development” which
reflect their area of activity. Indeed, many of these activities in support of human rights are
described in general terms as development action. Many NGOs and United Nations bodies
fall within these categories. Their work, as much as that of other human rights defenders, is
central to respect for and protection and achievement of human rights standards, and they
need and deserve the protection given to their activities by the Declaration on human rights
defenders.
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9. Human rights education and training
A further major action undertaken by human rights defenders is the provision of human
rights education. In some instances, education activities take the form of training for the
application of human rights standards in the context of a professional activity, for example by
judges, lawyers, police officers, soldiers or human rights monitors. In other instances,
education may be broader and involve teaching about human rights in schools and
universities or disseminating information on human rights standards to the general public or
to vulnerable populations.
In summary, gathering and disseminating information, advocacy and the mobilization of
public opinion are often the most common tools used by human rights defenders in
their work. As described in this section, however, they also provide information to
empower or train others. They participate actively in the provision of the material
means necessary to make human rights a reality – building shelter, providing food,
strengthening development, etc. They work at democratic transformation in order to
increase the participation of people in the decision-making that shapes their lives and
to strengthen good governance. They also contribute to the improvement of social,
political and economic conditions, the reduction of social and political tensions, the
building of peace, domestically and internationally, and the nurturing of national and
international awareness of human rights.
B. Who can be a human rights defender?
There is no specific definition of who is or can be a human rights defender. The Declaration
on human rights defenders (see annex I) refers to “individuals, groups and associations …
contributing to … the effective elimination of all violations of human rights and fundamental
freedoms of peoples and individuals” (fourth preambular paragraph).
In accordance with this broad categorization, human rights defenders can be any person or
group of persons working to promote human rights, ranging from intergovernmental
organizations based in the world’s largest cities to individuals working within their local
communities. Defenders can be of any gender, of varying ages, from any part of the world
and from all sorts of professional or other backgrounds. In particular, it is important to note
that human rights defenders are not only found within NGOs and intergovernmental
organizations but might also, in some instances, be government officials, civil servants or
members of the private sector.
1. Defending human rights through professional activities – paid or voluntary
The most obvious human rights defenders are those whose daily work specifically involves
the promotion and protection of human rights, for example human rights monitors working
with national human rights organizations, human rights ombudsmen or human rights
lawyers.
However, what is most important in characterizing a person as a human rights defender is
not the person’s title or the name of the organization he or she works for, but rather the
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human rights character of the work undertaken. It is not essential for a person to be known
as a “human rights activist” or to work for an organization that includes “human rights” in its
name in order to be a human rights defender. Many of the staff of the United Nations serve
as human rights defenders even if their day-to-day work is described in different terms, for
example as “development”. Similarly, the national and international staff of NGOs around the
world working to address humanitarian concerns can typically be described as human rights
defenders. People educating communities on HIV/AIDS, activists for the rights of indigenous
peoples, environmental activists and volunteers working in development are also playing a
crucial role as human rights defenders.
Many people work in a professional capacity as human rights defenders and are paid a
salary for their work. However, there are many others who work in a professional capacity as
human rights defenders but who are volunteers and receive no remuneration. Typically,
human rights organizations have very limited funding and the work provided by these
volunteers is invaluable.
Many professional activities do not involve human rights work all of the time but can have
occasional links with human rights. For example, lawyers working on commercial law issues
may not often address human rights concerns and cannot automatically be described as
human rights defenders. They can nevertheless act as defenders on some occasions by
working on cases through which they contribute to the promotion or protection of human
rights. Similarly, leaders of trades unions undertake numerous tasks, many of which bear no
relation to human rights, but when they are working specifically to promote or protect the
human rights of workers they can be described as human rights defenders. In the same way,
journalists have a broad mandate to gather information and disseminate it to a public
audience through print, radio or television media. In their general role, journalists are not
human rights defenders. However, many journalists do act as defenders, for example when
they report on human rights abuses and bear witness to acts that they have seen. Teachers
who instruct their pupils in basic principles of human rights fulfil a similar role. Doctors and
other medical professionals who treat and rehabilitate victims of human rights violations can
also be viewed as human rights defenders in the context of such work; and doctors have
special obligations by virtue of the Hippocratic oath.
Those who contribute to assuring justice – judges, the police, lawyers and other key actors –
often have a particular role to play and may come under considerable pressure to make
decisions that are favourable to the State or other powerful interests, such as the leaders of
organized crime. Where these actors in the judicial process make a special effort to ensure
access to fair and impartial justice, and thereby to guarantee the related human rights of
victims, they can be said to be acting as human rights defenders.
A similar “special effort” qualification can be applied to other professions or forms of
employment that bear no obvious relation to human rights. The individuals who hold these
jobs may sometimes choose to conduct their work in a way that offers specific support to
human rights. For example, some architects choose to design their construction projects in a
way that takes into consideration relevant human rights, such as the right to adequate
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(temporary) housing for the people who will work on the project, or the rights of children to
be consulted on the design, if the building is of particular relevance to them.
2.Defending human rights in a non-professional context
Many people act as human rights defenders outside any professional or employment
context. For example, a student who organizes other students to campaign for an end to
torture in prisons could be described as a human rights defender. An inhabitant of a rural
community who coordinates a demonstration by members of the community against
environmental degradation of their farmland by factory waste could also be described as a
human rights defender. A politician who takes a stand against endemic corruption within a
Government is a human rights defender for his or her action to promote and protect good
governance and certain rights that are threatened by such corruption. Witnesses in court
cases to prosecute the perpetrators of human rights abuses, and witnesses who provide
information to international human rights bodies or domestic courts and tribunals to help
them address violations, are also considered to be human rights defenders in the context of
those actions.
People all over the world strive for the realization of human rights according to their
circumstances and in their own way. The names of some human rights defenders are
internationally recognized, but the majority of defenders remain unknown. Whether an
individual works as a local government official, a policeman upholding the law or an
entertainer using his or her position to highlight injustices, all can play a role in the
advancement of human rights. The key is to look at how such people act to support human
rights and, in some instances, to see whether a “special effort” is made.
Clearly, it is impossible to catalogue the huge variety of contexts in which human rights
defenders are active. However, common to most defenders are a commitment to helping
others, a commitment to international human rights standards, a belief in equality and in nondiscrimination,
determination and, in many instances, tremendous courage.
C. Is a minimum standard required of human rights defenders?
No “qualification” is required to be a human rights defender, and the Declaration on human
rights defenders makes clear, as explained above, that we can all be defenders of human
rights if we choose to be. Nevertheless, the “standard” required of a human rights defender
is a complex issue, and the Declaration clearly indicates that defenders have responsibilities
as well as rights.
Accepting the universality of human rights
Human rights defenders must accept the universality of human rights as defined in the
Universal Declaration of Human Rights. [3] A person cannot deny some human rights and yet
claim to be a human rights defender because he or she is an advocate for others. For
example, it would not be acceptable to defend the human rights of men but to deny that
women have equal rights.
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Who is right and who is wrong – does it make a difference?
A second important issue concerns the validity of the arguments being presented. It is not
essential for a human rights defender to be correct in his or her arguments in order to be a
genuine defender. The critical test is whether or not the person is defending a human right.
For example, a group of defenders may advocate for the right of a rural community to own
the land they have lived on and farmed for several generations. They may conduct protests
against private economic interests that claim to own all of the land in the area. They may or
may not be correct about who owns the land. However, whether or not they are legally
correct is not relevant in determining whether they are genuine human rights defenders. The
key issue is whether or not their concerns fall within the scope of human rights.
This is a very important issue because, in many countries, human rights defenders are often
perceived by the State, or even the public, as being in the wrong because they are seen as
supporting one side of an argument. They are then told that they are not “real” human rights
defenders. Similarly, defenders who act in defence of the rights of political prisoners or
persons from armed opposition groups are often described by State authorities as being
supporters of such parties or groups, simply because they defend the rights of the people
concerned.
This is incorrect. Human rights defenders must be defined and accepted according to the
rights they are defending and according to their own right to do so.
Peaceful action
Finally, the actions taken by human rights defenders must be peaceful in order to comply
with the Declaration on human rights defenders.
[1]
The term “human rights defender” has been used increasingly since the adoption of the
Declaration on human rights defenders in 1998. Until then, terms such as human rights
“activist”, “professional”, “worker” or “monitor” had been most common. The term “human
rights defender” is seen as a more relevant and useful term.
[2]
For more information on international human rights mechanisms, see Fact Sheets Nos. 10
(Rev.1), 15, 16 (Rev.1), 17 and 27.
[3]
Adopted by the General Assembly of the United Nations by its resolution 217 A (III) of 10
December 1948. See Fact Sheet No. 2, The International Bill of Human Rights (Rev.1).
SOURCE: http://www.unhchr.ch/defenders/about1.htm
(See Appendix V)
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APPENDIX – I
A) Universal Declaration of Human Rights, 1948
Preamble
Whereas recognition of the inherent dignity and of the equal and inalienable rights of
all members of the human family is the foundation of freedom, justice and peace in the
world,
Whereas disregard and contempt for human rights have resulted in barbarous acts
which have outraged the conscience of mankind, and the advent of a world in which human
beings shall enjoy freedom of speech and belief and freedom from fear and want has been
proclaimed as the highest aspiration of the common people,
Whereas it is essential, if man is not to be compelled to have recourse, as a last
resort, to rebellion against tyranny and oppression, that human rights should be protected by
the rule of law,
Whereas it is essential to promote the development of friendly relations between
nations,
Whereas the peoples of the United Nations have in the Charter reaffirmed their faith
in fundamental human rights, in the dignity and worth of the human person and in the equal
rights of men and women and have determined to promote social progress and better
standards of life in larger freedom,
Whereas Member States have pledged themselves to achieve, in cooperation with
the United Nations, the promotion of universal respect for and observance of human rights
and fundamental freedoms,
Whereas a common understanding of these rights and freedoms is of the greatest
importance for the full realization of this pledge,
Now, therefore,
The General Assembly,
Proclaims this Universal Declaration of Human Rights as a common standard of
achievement for all peoples and all nations, to the end that every individual and every organ
of society, keeping this Declaration constantly in mind, shall strive by teaching and education
to promote respect for these rights and freedoms and by progressive measures, national and
international, to secure their universal and effective recognition and observance, both among
the peoples of Member States themselves and among the peoples of territories under their
jurisdiction.
Article 1
All human beings are born free and equal in dignity and rights. They are endowed
with reason and conscience and should act towards one another in a spirit of brotherhood.
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Article 2
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without
distinction of any kind, such as race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status.
Furthermore, no distinction shall be made on the basis of the political, jurisdictional or
international status of the country or territory to which a person belongs, whether it be
independent, trust, non-self-governing or under any other limitation of sovereignty.
Article 3
Everyone has the right to life, liberty and security of person.
Article 4
No one shall be held in slavery or servitude; slavery and the slave trade shall be
prohibited in all their forms.
Article 5
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment.
Article 6
Everyone has the right to recognition everywhere as a person before the law.
Article 7
All are equal before the law and are entitled without any discrimination to equal
protection of the law. All are entitled to equal protection against any discrimination in
violation of this Declaration and against any incitement to such discrimination.
Article 8
Everyone has the right to an effective remedy by the competent national tribunals for
acts violating the fundamental rights granted him by the constitution or by law.
Article 9
No one shall be subjected to arbitrary arrest, detention or exile.
Article 10
Everyone is entitled in full equality to a fair and public hearing by an independent and
impartial tribunal, in the determination of his rights and obligations and of any criminal
charge against him.
Article 11
1. Everyone charged with a penal offence has the right to be presumed innocent until
proved guilty according to law in a public trial at which he has had all the guarantees
necessary for his defence.
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2. No one shall be held guilty of any penal offence on account of any act or omission
which did not constitute a penal offence, under national or international law, at the
time when it was committed. Nor shall a heavier penalty be imposed than the one
that was applicable at the time the penal offence was committed.
Article 12
No one shall be subjected to arbitrary interference with his privacy, family, home or
correspondence, nor to attacks upon his honour and reputation. Everyone has the right to
the protection of the law against such interference or attacks.
Article 13
1. Everyone has the right to freedom of movement and residence within the borders of
each State.
2. Everyone has the right to leave any country, including his own, and to return to his
country.
Article 14
1. Everyone has the right to seek and to enjoy in other countries asylum from
persecution.
2. This right may not be invoked in the case of prosecutions genuinely arising from nonpolitical
crimes or from acts contrary to the purposes and principles of the United
Nations.
Article 15
1. Everyone has the right to a nationality.
2. No one shall be arbitrarily deprived of his nationality nor denied the right to change
his nationality.
Article 16
1. Men and women of full age, without any limitation due to race, nationality or religion,
have the right to marry and to found a family. They are entitled to equal rights as to
marriage, during marriage and at its dissolution.
2. Marriage shall be entered into only with the free and full consent of the intending
spouses.
3. The family is the natural and fundamental group unit of society and is entitled to
protection by society and the State.
Article 17
1. Everyone has the right to own property alone as well as in association with others.
2. No one shall be arbitrarily deprived of his property.
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Article 18
Everyone has the right to freedom of thought, conscience and religion; this right
includes freedom to change his religion or belief, and freedom, either alone or in community
with others and in public or private, to manifest his religion or belief in teaching, practice,
worship and observance.
Article 19
Everyone has the right to freedom of opinion and expression; this right includes
freedom to hold opinions without interference and to seek, receive and impart information
and ideas through any media and regardless of frontiers.
Article 20
1. Everyone has the right to freedom of peaceful assembly and association.
2. No one may be compelled to belong to an association.
Article 21
1. Everyone has the right to take part in the government of his country, directly or
through freely chosen representatives.
2. Everyone has the right to equal access to public service in his country.
3. The will of the people shall be the basis of the authority of government; this will shall
be expressed in periodic and genuine elections which shall be by universal and equal
suffrage and shall be held by secret vote or by equivalent free voting procedures.
Article 22
Everyone, as a member of society, has the right to social security and is entitled to
realization, through national effort and international co-operation and in accordance with the
organization and resources of each State, of the economic, social and cultural rights
indispensable for his dignity and the free development of his personality.
Article 23
1. Everyone has the right to work, to free choice of employment, to just and favourable
conditions of work and to protection against unemployment.
2. Everyone, without any discrimination, has the right to equal pay for equal work.
3. Everyone who works has the right to just and favourable remuneration ensuring for
himself and his family an existence worthy of human dignity, and supplemented, if
necessary, by other means of social protection.
4. Everyone has the right to form and to join trade unions for the protection of his
interests.
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Article 24
Everyone has the right to rest and leisure, including reasonable limitation of working hours
and periodic holidays with pay.
Article 25
1. Everyone has the right to a standard of living adequate for the health and well-being
of himself and of his family, including food, clothing, housing and medical care and
necessary social services, and the right to security in the event of unemployment,
sickness, disability, widowhood, old age or other lack of livelihood in circumstances
beyond his control.
2. Motherhood and childhood are entitled to special care and assistance. All children,
whether born in or out of wedlock, shall enjoy the same social protection.
Article 26
1. Everyone has the right to education. Education shall be free, at least in the
elementary and fundamental stages. Elementary education shall be compulsory.
Technical and professional education shall be made generally available and higher
education shall be equally accessible to all on the basis of merit.
2. Education shall be directed to the full development of the human personality and to
the strengthening of respect for human rights and fundamental freedoms. It shall
promote understanding, tolerance and friendship among all nations, racial or religious
groups, and shall further the activities of the United Nations for the maintenance of
peace.
3. Parents have a prior right to choose the kind of education that shall be given to their
children.
Article 27
1. Everyone has the right freely to participate in the cultural life of the community, to
enjoy the arts and to share in scientific advancement and its benefits.
2. Everyone has the right to the protection of the moral and material interests resulting
from any scientific, literary or artistic production of which he is the author.
Article 28
Everyone is entitled to a social and international order in which the rights and
freedoms set forth in this Declaration can be fully realized.
Article 29
1. Everyone has duties to the community in which alone the free and full development
of his personality is possible.
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2. In the exercise of his rights and freedoms, everyone shall be subject only to such
limitations as are determined by law solely for the purpose of securing due
recognition and respect for the rights and freedoms of others and of meeting the just
requirements of morality, public order and the general welfare in a democratic
society.
3. These rights and freedoms may in no case be exercised contrary to the purposes
and principles of the United Nations.
Article 30
Nothing in this Declaration may be interpreted as implying for any State, group or
person any right to engage in any activity or to perform any act aimed at the destruction of
any of the rights and freedoms set forth herein.
B) Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, 1984
The States Parties to this Convention,
Considering that, in accordance with the principles proclaimed in the Charter of the United
Nations, recognition of the equal and inalienable rights of all members of the human family is
the foundation of freedom, justice and peace in the world,
Recognizing that those rights derive from the inherent dignity of the human person,
Considering the obligation of States under the Charter, in particular Article 55, to promote
universal respect for, and observance of, human rights and fundamental freedoms,
Having regard to article 5 of the Universal Declaration of Human Rights and article 7 of the
International Covenant on Civil and Political Rights, both of which provide that no one shall
be subjected to torture or to cruel, inhuman or degrading treatment or punishment,
Having regard also to the Declaration on the Protection of All Persons from Being Subjected
to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the
General Assembly on 9 December 1975,
Desiring to make more effective the struggle against torture and other cruel, inhuman or
degrading treatment or punishment throughout the world,
Have agreed as follows:
PART I
Article 1
1. For the purposes of this Convention, 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
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discrimination of any kind, when such pain or suffering is 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. It does not include pain or suffering arising only from, inherent in or
incidental to lawful sanctions.
2. This article is without prejudice to any international instrument or national legislation
which does or may contain provisions of wider application.
Article 2
1. Each State Party shall take effective legislative, administrative, judicial or other
measures to prevent acts of torture in any territory under its jurisdiction.
2. No exceptional circumstances whatsoever, whether a state of war or a threat of war,
internal political in stability or any other public emergency, may be invoked as a
justification of torture.
3. An order from a superior officer or a public authority may not be invoked as a justification
of torture.
Article 3
1. No State Party shall expel, return ("refouler") or extradite a person to another State
where there are substantial grounds for believing that he would be in danger of being
subjected to torture.
2. For the purpose of determining whether there are such grounds, the competent
authorities shall take into account all relevant considerations including, where applicable,
the existence in the State concerned of a consistent pattern of gross, flagrant or mass
violations of human rights.
Article 4
1. Each State Party shall ensure that all acts of torture are offences under its criminal law.
The same shall apply to an attempt to commit torture and to an act by any person which
constitutes complicity or participation in torture.
2. Each State Party shall make these offences punishable by appropriate penalties which
take into account their grave nature.
Article 5
1. Each State Party shall take such measures as may be necessary to establish its
jurisdiction over the offences referred to in article 4 in the following cases:
a. When the offences are committed in any territory under its jurisdiction or on board a
ship or aircraft registered in that State;
b. When the alleged offender is a national of that State;
c. When the victim is a national of that State if that State considers it appropriate.
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2. Each State Party shall likewise take such measures as may be necessary to establish its
jurisdiction over such offences in cases where the alleged offender is present in any
territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of
the States mentioned in paragraph I of this article.
3. This Convention does not exclude any criminal jurisdiction exercised in accordance with
internal law.
Article 6
1. Upon being satisfied, after an examination of information available to it, that the
circumstances so warrant, any State Party in whose territory a person alleged to have
committed any offence referred to in article 4 is present shall take him into custody or
take other legal measures to ensure his presence. The custody and other legal
measures shall be as provided in the law of that State but may be continued only for
such time as is necessary to enable any criminal or extradition proceedings to be
instituted.
2. Such State shall immediately make a preliminary inquiry into the facts.
3. Any person in custody pursuant to paragraph I of this article shall be assisted in
communicating immediately with the nearest appropriate representative of the State of
which he is a national, or, if he is a stateless person, with the representative of the State
where he usually resides.
4. When a State, pursuant to this article, has taken a person into custody, it shall
immediately notify the States referred to in article 5, paragraph 1, of the fact that such
person is in custody and of the circumstances which warrant his detention. The State
which makes the preliminary inquiry contemplated in paragraph 2 of this article shall
promptly report its findings to the said States and shall indicate whether it intends to
exercise jurisdiction.
Article 7
1. The State Party in the territory under whose jurisdiction a person alleged to have
committed any offence referred to in article 4 is found shall in the cases contemplated in
article 5, if it does not extradite him, submit the case to its competent authorities for the
purpose of prosecution.
2. These authorities shall take their decision in the same manner as in the case of any
ordinary offence of a serious nature under the law of that State. In the cases referred to
in article 5, paragraph 2, the standards of evidence required for prosecution and
conviction shall in no way be less stringent than those which apply in the cases referred
to in article 5, paragraph 1.
3. Any person regarding whom proceedings are brought in connection with any of the
offences referred to in article 4 shall be guaranteed fair treatment at all stages of the
proceedings.
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Article 8
1. The offences referred to in article 4 shall be deemed to be included as extraditable
offences in any extradition treaty existing between States Parties. States Parties
undertake to include such offences as extraditable offences in every extradition treaty to
be concluded between them.
2. If a State Party which makes extradition conditional on the existence of a treaty receives
a request for extradition from another State Party with which it has no extradition treaty, it
may consider this Convention as the legal basis for extradition in respect of such
offences. Extradition shall be subject to the other conditions provided by the law of the
requested State.
3. States Parties which do not make extradition conditional on the existence of a treaty
shall recognize such offences as extraditable offences between themselves subject to
the conditions provided by the law of the requested State.
4. Such offences shall be treated, for the purpose of extradition between States Parties, as
if they had been committed not only in the place in which they occurred but also in the
territories of the States required to establish their jurisdiction in accordance with article 5,
paragraph 1.
Article 9
1. States Parties shall afford one another the greatest measure of assistance in connection
with criminal proceedings brought in respect of any of the offences referred to in article 4,
including the supply of all evidence at their disposal necessary for the proceedings.
2. States Parties shall carry out their obligations under paragraph I of this article in
conformity with any treaties on mutual judicial assistance that may exist between them.
Article 10
1. Each State Party shall ensure that education and information regarding the prohibition
against torture are fully included in the training of law enforcement personnel, civil or
military, medical personnel, public officials and other persons who may be involved in the
custody, interrogation or treatment of any individual subjected to any form of arrest,
detention or imprisonment.
2. Each State Party shall include this prohibition in the rules or instructions issued in regard
to the duties and functions of any such person.
Article 11
Each State Party shall keep under systematic review interrogation rules, instructions,
methods and practices as well as arrangements for the custody and treatment of persons
subjected to any form of arrest, detention or imprisonment in any territory under its
jurisdiction, with a view to preventing any cases of torture.
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Article 12
Each State Party shall ensure that its competent authorities proceed to a prompt and
impartial investigation, wherever there is reasonable ground to believe that an act of torture
has been committed in any territory under its jurisdiction.
Article 13
Each State Party shall ensure that any individual who alleges he has been subjected
to torture in any territory under its jurisdiction has the right to complain to, and to have his
case promptly and impartially examined by, its competent authorities. Steps shall be taken to
ensure that the complainant and witnesses are protected against all ill-treatment or
intimidation as a consequence of his complaint or any evidence given.
Article 14
1. Each State Party shall ensure in its legal system that the victim of an act of torture
obtains redress and has an enforceable right to fair and adequate compensation,
including the means for as full rehabilitation as possible. In the event of the death of the
victim as a result of an act of torture, his dependants shall be entitled to compensation.
2. Nothing in this article shall affect any right of the victim or other persons to compensation
which may exist under national law.
Article 15
Each State Party shall ensure that any statement which is established to have been
made as a result of torture shall not be invoked as evidence in any proceedings, except
against a person accused of torture as evidence that the statement was made.
Article 16
1. Each State Party shall undertake to prevent in any territory under its jurisdiction other
acts of cruel, inhuman or degrading treatment or punishment which do not amount to
torture as defined in article I, when such acts are committed by or at the instigation of or
with the consent or acquiescence of a public official or other person acting in an official
capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply
with the substitution for references to torture of references to other forms of cruel,
inhuman or degrading treatment or punishment.
2. The provisions of this Convention are without prejudice to the provisions of any other
international instrument or national law which prohibits cruel, inhuman or degrading
treatment or punishment or which relates to extradition or expulsion.
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PART II
Article 17
1. There shall be established a Committee against Torture (hereinafter referred to as the
Committee) which shall carry out the functions hereinafter provided. The Committee shall
consist of ten experts of high moral standing and recognized competence in the field of
human rights, who shall serve in their personal capacity. The experts shall be elected by
the States Parties, consideration being given to equitable geographical distribution and
to the usefulness of the participation of some persons having legal experience.
2. The members of the Committee shall be elected by secret ballot from a list of persons
nominated by States Parties. Each State Party may nominate one person from among its
own nationals. States Parties shall bear in mind the usefulness of nominating persons
who are also members of the Human Rights Committee established under the
International Covenant on Civil and Political Rights and who are willing to serve on the
Committee against Torture.
3. Elections of the members of the Committee shall be held at biennial meetings of States
Parties convened by the Secretary-General of the United Nations. At those meetings, for
which two thirds of the States Parties shall constitute a quorum, the persons elected to
the Committee shall be those who obtain the largest number of votes and an absolute
majority of the votes of the representatives of States Parties present and voting.
4. The initial election shall be held no later than six months after the date of the entry into
force of this Convention. At. Ieast four months before the date of each election, the
Secretary-General of the United Nations shall address a letter to the States Parties
inviting them to submit their nominations within three months. The Secretary-General
shall prepare a list in alphabetical order of all persons thus nominated, indicating the
States Parties which have nominated them, and shall submit it to the States Parties.
5. The members of the Committee shall be elected for a term of four years. They shall be
eligible for re-election if renominated. However, the term of five of the members elected
at the first election shall expire at the end of two years; immediately after the first election
the names of these five members shall be chosen by lot by the chairman of the meeting
referred to in paragraph 3 of this article.
6. If a member of the Committee dies or resigns or for any other cause can no longer
perform his Committee duties, the State Party which nominated him shall appoint
another expert from among its nationals to serve for the remainder of his term, subject to
the approval of the majority of the States Parties. The approval shall be considered given
unless half or more of the States Parties respond negatively within six weeks after
having been informed by the Secretary-General of the United Nations of the proposed
appointment.
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7. States Parties shall be responsible for the expenses of the members of the Committee
while they are in performance of Committee duties. (amendment (see General Assembly
resolution 47/111 of 16 December 1992);
Article 18
1. The Committee shall elect its officers for a term of two years. They may be re-elected.
2. The Committee shall establish its own rules of procedure, but these rules shall provide,
inter alia, that:
(a) Six members shall constitute a quorum;
(b) Decisions of the Committee shall be made by a majority vote of the members
present.
3. The Secretary-General of the United Nations shall provide the necessary staff and
facilities for the effective performance of the functions of the Committee under this
Convention.
4. The Secretary-General of the United Nations shall convene the initial meeting of the
Committee. After its initial meeting, the Committee shall meet at such times as shall be
provided in its rules of procedure.
5. The States Parties shall be responsible for expenses incurred in connection with the
holding of meetings of the States Parties and of the Committee, including reimbursement
to the United Nations for any expenses, such as the cost of staff and facilities, incurred
by the United Nations pursuant to paragraph 3 of this article. (amendment (see General
Assembly resolution 47/111 of 16 December 1992);
Article 19
1. The States Parties shall submit to the Committee, through the Secretary-General of the
United Nations, reports on the measures they have taken to give effect to their
undertakings under this Convention, within one year after the entry into force of the
Convention for the State Party concerned. Thereafter the States Parties shall submit
supplementary reports every four years on any new measures taken and such other
reports as the Committee may request.
2. The Secretary-General of the United Nations shall transmit the reports to all States
Parties.
3. Each report shall be considered by the Committee which may make such general
comments on the report as it may consider appropriate and shall forward these to the
State Party concerned. That State Party may respond with any observations it chooses
to the Committee.
4. The Committee may, at its discretion, decide to include any comments made by it in
accordance with paragraph 3 of this article, together with the observations thereon
received from the State Party concerned, in its annual report made in accordance with
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article 24. If so requested by the State Party concerned, the Committee may also include
a copy of the report submitted under paragraph I of this article.
Article 20
1. If the Committee receives reliable information which appears to it to contain well-founded
indications that torture is being systematically practised in the territory of a State Party,
the Committee shall invite that State Party to co-operate in the examination of the
information and to this end to submit observations with regard to the information
concerned.
2. Taking into account any observations which may have been submitted by the State Party
concerned, as well as any other relevant information available to it, the Committee may,
if it decides that this is warranted, designate one or more of its members to make a
confidential inquiry and to report to the Committee urgently.
3. If an inquiry is made in accordance with paragraph 2 of this article, the Committee shall
seek the co-operation of the State Party concerned. In agreement with that State Party,
such an inquiry may include a visit to its territory.
4. After examining the findings of its member or members submitted in accordance with
paragraph 2 of this article, the Commission shall transmit these findings to the State
Party concerned together with any comments or suggestions which seem appropriate in
view of the situation.
5. All the proceedings of the Committee referred to in paragraphs I to 4 of th is article s hall
be con fidential , and at all stages of the proceedings the co-operation of the State Party
shall be sought. After such proceedings have been completed with regard to an inquiry
made in accordance with paragraph 2, the Committee may, after consultations with the
State Party concerned, decide to include a summary account of the results of the
proceedings in its annual report made in accordance with article 24.
Article 21
1. A State Party to this Convention may at any time declare under this article that it
recognizes the competence of the Committee to receive and consider communications to
the effect that a State Party claims that another State Party is not fulfilling its obligations
under this Convention. Such communications may be received and considered
according to the procedures laid down in this article only if submitted by a State Party
which has made a declaration recognizing in regard to itself the competence of the
Committee. No communication shall be dealt with by the Committee under this article if it
concerns a State Party which has not made such a declaration. Communications
received under this article shall be dealt with in accordance with the following procedure;
a. If a State Party considers that another State Party is not giving effect to the
provisions of this Convention, it may, by written communication, bring the matter to
the attention of that State Party. Within three months afler the receipt of the
communication the receiving State shall afford the State which sent the
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communication an explanation or any other statement in writing clarifying the matter,
which should include, to the extent possible and pertinent, reference to domestic
procedures and remedies taken, pending or available in the matter;
b. If the matter is not adjusted to the satisfaction of both States Parties concerned within
six months after the receipt by the receiving State of the initial communication, either
State shall have the right to refer the matter to the Committee, by notice given to the
Committee and to the other State;
c. The Committee shall deal with a matter referred to it under this article only after it has
ascertained that all domestic remedies have been invoked and exhausted in the
matter, in conformity with the generally recognized principles of international law.
This shall not be the rule where the application of the remedies is unreasonably
prolonged or is unlikely to bring effective relief to the person who is the victim of the
violation of this Convention;
d. The Committee shall hold closed meetings when examining communications under
this article;
e. Subject to the provisions of subparagraph (c), the Committee shall make available its
good offices to the States Parties concerned with a view to a friendly solution of the
matter on the basis of respect for the obligations provided for in this Convention. For
this purpose, the Committee may, when appropriate, set up an ad hoc conciliation
commission;
f. In any matter referred to it under this article, the Committee may call upon the States
Parties concerned, referred to in subparagraph (b), to supply any relevant
information;
g. The States Parties concerned, referred to in subparagraph (b), shall have the right to
be represented when the matter is being considered by the Committee and to make
submissions orally and/or in writing;
h. The Committee shall, within twelve months after the date of receipt of notice under
subparagraph (b), submit a report:
(i)
(ii)
If a solution within the terms of subparagraph (e) is reached, the Committee
shall confine its report to a brief statement of the facts and of the solution
reached;
If a solution within the terms of subparagraph (e) is not reached, the Committee
shall confine its report to a brief statement of the facts; the written submissions
and record of the oral submissions made by the States Parties concerned shall
be attached to the report.
In every matter, the report shall be communicated to the States Parties concerned.
2. The provisions of this article shall come into force when five States Parties to this
Convention have made declarations under paragraph 1 of this article. Such declarations
302

shall be deposited by the States Parties with the Secretary-General of the United
Nations, who shall transmit copies thereof to the other States Parties. A declaration may
be withdrawn at any time by notification to the Secretary-General. Such a withdrawal
shall not prejudice the consideration of any matter which is the subject of a
communication already transmitted under this article; no further communication by any
State Party shall be received under this article after the notification of withdrawal of the
declaration has been received by the Secretary-General, unless the State Party
concerned has made a new declaration.
Article 22
1. A State Party to this Convention may at any time declare under this article that it
recognizes the competence of the Committee to receive and consider communications
from or on behalf of individuals subject to its jurisdiction who claim to be victims of a
violation by a State Party of the provisions of the Convention. No communication shall be
received by the Committee if it concerns a State Party which has not made such a
declaration.
2. The Committee shall consider inadmissible any communication under this article which is
anonymous or which it considers to be an abuse of the right of submission of such
communications or to be incompatible with the provisions of this Convention.
3. Subject to the provisions of paragraph 2, the Committee shall bring any communications
submitted to it under this article to the attention of the State Party to this Convention
which has made a declaration under paragraph I and is alleged to be violating any
provisions of the Convention. Within six months, the receiving State shall submit to the
Committee written explanations or statements clarifying the matter and the remedy, if
any, that may have been taken by that State.
4. The Committee shall consider communications received under this article in the light of
all information made available to it by or on behalf of the individual and by the State
Party concerned.
6. The Committee shall not consider any communications from an individual under this
article unless it has ascertained that:
(a) The same matter has not been, and is not being, examined under another
procedure of international investigation or settlement;
(b) The individual has exhausted all available domestic remedies; this shall not be
the rule where the application of the remedies is unreasonably prolonged or is
unlikely to bring effective reliefto the person who is the victim of the violation of
this Convention.
6. The Committee shall hold closed meetings when examining communications under this
article.
7. The Committee shall forward its views to the State Party concerned and to the individual.
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8. The provisions of this article shall come into force when five States Parties to this
Convention have made declarations under paragraph 1 of this article. Such declarations
shall be deposited by the States Parties with the Secretary-General of the United
Nations, who shall transmit copies thereof to the other States Parties. A declaration may
be withdrawn at any time by notification to the Secretary-General. Such a withdrawal
shall not prejudice the consideration of any matter which is the subject of a
communication already transmitted under this article; no further communication by or on
behalf of an individual shall be received under this article after the notification of
withdrawal of the declaration has been received by the SecretaryGeneral, unless the
State Party has made a new declaration.
Article 23
The members of the Committee and of the ad hoc conciliation commissions which may be
appointed under article 21, paragraph I (e), shall be entitled to the facilities, privileges and
immunities of experts on mission for the United Nations as laid down in the relevant sections
of the Convention on the Privileges and Immunities of the United Nations.
Article 24
The Committee shall submit an annual report on its activities under this Convention to the
States Parties and to the General Assembly of the United Nations.
PART III
Article 25
1. This Convention is open for signature by all States. 2. This Convention is subject to
ratification. Instruments of ratification shall be deposited with the Secretary-General of
the United Nations.
Article 26
This Convention is open to accession by all States. Accession shall be effected by the
deposit of an instrument of accession with the Secretary General of the United Nations.
Article 27
1. This Convention shall enter into force on the thirtieth day after the date of the deposit
with the Secretary-General of the United Nations of the twentieth instrument of
ratification or accession.
2. For each State ratifying this Convention or acceding to it after the deposit of the twentieth
instrument of ratification or accession, the Convention shall enter into force on the
thirtieth day after the date of the deposit of its own instrument of ratification or accession.
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Article 28
1. Each State may, at the time of signature or ratification of this Convention or accession
thereto, declare that it does not recognize the competence of the Committee provided for
in article 20.
2. Any State Party having made a reservation in accordance with paragraph I of this article
may, at any time, withdraw this reservation by notification to the Secretary-General of the
United Nations.
Article 29
1. Any State Party to this Convention may propose an amendment and file it with the
Secretary-General of the United Nations. The SecretaryGeneral shall thereupon
communicate the proposed amendment to the States Parties with a request that they
notify him whether they favour a conference of States Parties for the purpose of
considering an d voting upon the proposal. In the event that within four months from the
date of such communication at least one third of the States Parties favours such a
conference, the Secretary General shall convene the conference under the auspices of
the United Nations. Any amendment adopted by a majority of the States Parties present
and voting at the conference shall be submitted by the Secretary-General to all the
States Parties for acceptance.
2. An amendment adopted in accordance with paragraph I of this article shall enter into
force when two thirds of the States Parties to this Convention have notified the
Secretary-General of the United Nations that they have accepted it in accordance with
their respective constitutional processes.
3. When amendments enter into force, they shall be binding on those States Parties which
have accepted them, other States Parties still being bound by the provisions of this
Convention and any earlier amendments which they have accepted.
Article 30
1. Any dispute between two or more States Parties concerning the interpretation or
application of this Convention which cannot be settled through negotiation shall, at the
request of one of them, be submitted to arbitration. If within six months from thc date of
the request for arbitration the Parties are unable to agree on the organization of the
arbitration, any one of those Parties may refer the dispute to the International Court of
Justice by request in conformity with the Statute of the Court.
2. Each State may, at the time of signature or ratification of this Con vention or accession
thereto, declare that it does not consider itself bound by paragraph I of this article. The
other States Parties shall not be bound by paragraph I of this article with respect to any
State Party having made such a reservation.
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3. Any State Party having made a reservation in accordance with paragraph 2 of this article
may at any time withdraw this reservation by notification to the Secretary-General of the
United Nations.
Article 31
1. A State Party may denounce this Convention by written notification to the Secretary-
General of the United Nations. Denunciation becomes effective one year after the date of
receipt of- the notification by the Secretary-General .
2. Such a denunciation shall not have the effect of releasing the State Party from its
obligations under this Convention in regard to any act or omission which occurs prior to
the date at which the denunciation becomes effective, nor shall denunciation prejudice in
any way the continued consideration of any matter which is already under consideration
by the Committee prior to the date at which the denunciation becomes effective.
3. Following the date at which the denunciation of a State Party becomes effective, the
Committee shall not commence consideration of any new matter regarding that State.
Article 32
The Secretary-General of the United Nations shall inform all States Members of the United
Nations and all States which have signed this Convention or acceded to it of the following:
a. Signatures, ratifications and accessions under articles 25 and 26;
b. The date of entry into force of this Convention under article 27 and the date of the
entry into force of any amendments under article 29;
c. Denunciations under article 31.
Article 33
1. This Convention, of which the Arabic, Chinese, English, French, Russian and Spanish
texts are equally authentic, shall be deposited with the Secretary-General of the United
Nations.
2. The Secretary-General of the United Nations shall transmit certified copies of this
Convention to all States.
C) Optional Protocol to the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment
PREAMBLE
The States Parties to the present Protocol,
Reaffirming that torture and other cruel, inhuman or degrading treatment or punishment are
prohibited and constitute serious violations of human rights,
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Convinced that further measures are necessary to achieve the purposes of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(hereinafter referred to as the Convention) and to strengthen the protection of persons
deprived of their liberty against torture and other cruel, inhuman or degrading treatment or
punishment,
Recalling that articles 2 and 16 of the Convention oblige each State Party to take effective
measures to prevent acts of torture and other cruel, inhuman or degrading treatment or
punishment in any territory under its jurisdiction,
Recognizing that States have the primary responsibility for implementing those articles, that
strengthening the protection of people deprived of their liberty and the full respect for their
human rights is a common responsibility shared by all and that international implementing
bodies complement and strengthen national measures,
Recalling that the effective prevention of torture and other cruel, inhuman or degrading
treatment or punishment requires education and a combination of various legislative,
administrative, judicial and other measures,
Recalling also that the World Conference on Human Rights firmly declared that efforts to
eradicate torture should first and foremost be concentrated on prevention and called for the
adoption of an optional protocol to the Convention, intended to establish a preventive system
of regular visits to places of detention,
Convinced that the protection of persons deprived of their liberty against torture and other
cruel, inhuman or degrading treatment or punishment can be strengthened by non-judicial
means of a preventive nature, based on regular visits to places of detention,
Have agreed as follows:
PART I
General principles
Article 1
The objective of the present Protocol is to establish a system of regular visits undertaken by
independent international and national bodies to places where people are deprived of their
liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or
punishment.
Article 2
1. A Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment of the Committee against Torture (hereinafter referred to as
the Subcommittee on Prevention) shall be established and shall carry out the functions
laid down in the present Protocol.
2. The Subcommittee on Prevention shall carry out its work within the framework of the
Charter of the United Nations and shall be guided by the purposes and principles
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thereof, as well as the norms of the United Nations concerning the treatment of people
deprived of their liberty.
3. Equally, the Subcommittee on Prevention shall be guided by the principles of
confidentiality, impartiality, non-selectivity, universality and objectivity.
4. The Subcommittee on Prevention and the States Parties shall cooperate in the
implementation of the present Protocol.
Article 3
Each State Party shall set up, designate or maintain at the domestic level one or several
visiting bodies for the prevention of torture and other cruel, inhuman or degrading treatment
or punishment (hereinafter referred to as the national preventive mechanism).
Article 4
1. Each State Party shall allow visits, in accordance with the present Protocol, by the
mechanisms referred to in articles 2 and 3 to any place under its jurisdiction and control
where persons are or may be deprived of their liberty, either by virtue of an order given
by a public authority or at its instigation or with its consent or acquiescence (hereinafter
referred to as places of detention). These visits shall be undertaken with a view to
strengthening, if necessary, the protection of these persons against torture and other
cruel, inhuman or degrading treatment or punishment.
2. For the purposes of the present Protocol, deprivation of liberty means any form of
detention or imprisonment or the placement of a person in a public or private custodial
setting which that person is not permitted to leave at will by order of any judicial,
administrative or other authority.
PART II
Subcommittee on Prevention
Article 5
1. The Subcommittee on Prevention shall consist of ten members. After the fiftieth
ratification of or accession to the present Protocol, the number of the members of the
Subcommittee on Prevention shall increase to twenty-five.
2. The members of the Subcommittee on Prevention shall be chosen from among persons
of high moral character, having proven professional experience in the field of the
administration of justice, in particular criminal law, prison or police administration, or in
the various fields relevant to the treatment of persons deprived of their liberty.
3. In the composition of the Subcommittee on Prevention due consideration shall be given
to equitable geographic distribution and to the representation of different forms of
civilization and legal systems of the States Parties.
4. In this composition consideration shall also be given to balanced gender representation
on the basis of the principles of equality and non-discrimination.
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5. No two members of the Subcommittee on Prevention may be nationals of the same
State.
6. The members of the Subcommittee on Prevention shall serve in their individual capacity,
shall be independent and impartial and shall be available to serve the Subcommittee on
Prevention efficiently.
Article 6
1. Each State Party may nominate, in accordance with paragraph 2 of the present article, up
to two candidates possessing the qualifications and meeting the requirements set out in
article 5, and in doing so shall provide detailed information on the qualifications of the
nominees.
2. (a) The nominees shall have the nationality of a State Party to the present Protocol;
(b) At least one of the two candidates shall have the nationality of the nominating State
Party;
(c) No more than two nationals of a State Party shall be nominated;
(d) Before a State Party nominates a national of another State Party, it shall seek and obtain
the consent of that State Party.
3. At least five months before the date of the meeting of the States Parties during which the
elections will be held, the Secretary-General of the United Nations shall address a letter to
the States Parties inviting them to submit their nominations within three months. The
Secretary-General shall submit a list, in alphabetical order, of all persons thus nominated,
indicating the States Parties that have nominated them.
Article 7
1. The members of the Subcommittee on Prevention shall be elected in the following
manner:
(a) Primary consideration shall be given to the fulfilment of the requirements and criteria of
article 5 of the present Protocol;
(b) The initial election shall be held no later than six months after the entry into force of the
present Protocol;
(c) The States Parties shall elect the members of the Subcommittee on Prevention by secret
ballot;
(d) Elections of the members of the Subcommittee on Prevention shall be held at biennial
meetings of the States Parties convened by the Secretary - General of the United Nations.
At those meetings, for which two thirds of the States Parties shall constitute a quorum, the
persons elected to the Subcommittee on Prevention shall be those who obtain the largest
number of votes and an absolute majority of the votes of the representatives of the States
Parties present and voting.
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2. If during the election process two nationals of a State Party have become eligible to serve
as members of the Subcommittee on Prevention, the candidate receiving the higher number
of votes shall serve as the member of the Subcommittee on Prevention. Where nationals
have received the same number of votes, the following procedure applies:
(a) Where only one has been nominated by the State Party of which he or she is a national,
that national shall serve as the member of the Subcommittee on Prevention;
(b) Where both candidates have been nominated by the State Party of which they are
nationals, a separate vote by secret ballot shall be held to determine which national shall
become the member;
(c) Where neither candidate has been nominated by the State Party of which he or she is a
national, a separate vote by secret ballot shall be held to determine which candidate shall be
the member.
Article 8
If a member of the Subcommittee on Prevention dies or resigns, or for any cause can no
longer perform his or her duties, the State Party that nominated the member shall nominate
another eligible person possessing the qualifications and meeting the requirements set out in
article 5, taking into account the need for a proper balance among the various fields of
competence, to serve until the next meeting of the States Parties, subject to the approval of
the majority of the States Parties. The approval shall be considered given unless half or
more of the States Parties respond negatively within six weeks after having been informed
by the Secretary-General of the United Nations of the proposed appointment.
Article 9
The members of the Subcommittee on Prevention shall be elected for a term of four years.
They shall be eligible for re-election once if renominated. The term of half the members
elected at the first election shall expire at the end of two years; immediately after the first
election the names of those members shall be chosen by lot by the Chairman of the meeting
referred to in article 7, paragraph 1 ( d).
Article 10
1. The Subcommittee on Prevention shall elect its officers for a term of two years. They may
be re-elected.
2. The Subcommittee on Prevention shall establish its own rules of procedure. These rules
shall provide, inter alia, that:
(a) Half the members plus one shall constitute a quorum;
(b) Decisions of the Subcommittee on Prevention shall be made by a majority vote of the
members present;
(c) The Subcommittee on Prevention shall meet in camera.
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3. The Secretary-General of the United Nations shall convene the initial meeting of the
Subcommittee on Prevention. After its initial meeting, the Subcommittee on Prevention shall
meet at such times as shall be provided by its rules of procedure. The Subcommittee on
Prevention and the Committee against Torture shall hold their sessions simultaneously at
least once a year.
PART III
Mandate of the Subcommittee on Prevention
Article 11
The Subcommittee on Prevention shall:
(a) Visit the places referred to in article 4 and make recommendations to States Parties
concerning the protection of persons deprived of their liberty against torture and other cruel,
inhuman or degrading treatment or punishment;
(b) In regard to the national preventive mechanisms:
(i) Advise and assist States Parties, when necessary, in their establishment;
(ii) Maintain direct, and if necessary confidential, contact with the national preventive
mechanisms and offer them training and technical assistance with a view to strengthening
their
capacities;
(iii) Advise and assist them in the evaluation of the needs and the means necessary to
strengthen the protection of persons deprived of their liberty against torture and other cruel,
inhuman or degrading treatment or punishment;
(iv) Make recommendations and observations to the States Parties with a view to
strengthening the capacity and the mandate of the national preventive mechanisms for the
prevention of torture and other cruel, inhuman or degrading treatment or punishment;
(c) Cooperate, for the prevention of torture in general, with the relevant United Nations
organs and mechanisms as well as with the international, regional and national institutions or
organizations working towards the strengthening of the protection of all persons against
torture and other cruel, inhuman or degrading treatment or punishment.
Article 12
In order to enable the Subcommittee on Prevention to comply with its mandate as laid down
in article 11, the States Parties undertake:
(a) To receive the Subcommittee on Prevention in their territory and grant it access to the
places of detention as defined in article 4 of the present Protocol;
(b) To provide all relevant information the Subcommittee on Prevention may request to
evaluate the needs and measures that should be adopted to strengthen the protection of
persons deprived of their liberty against torture and other cruel, inhuman or degrading
treatment or punishment;
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(c) To encourage and facilitate contacts between the Subcommittee on Prevention and the
national preventive mechanisms;
(d) To examine the recommendations of the Subcommittee on Prevention and enter into
dialogue with it on possible implementation measures.
Article 13
1. The Subcommittee on Prevention shall establish, at first by lot, a programme of regular
visits to the States Parties in order to fulfil its mandate as established in article 11.
2. After consultations, the Subcommittee on Prevention shall notify the States Parties of its
programme in order that they may, without delay, make the necessary practical
arrangements for the visits to be conducted.
3. The visits shall be conducted by at least two members of the Subcommittee on
Prevention. These members may be accompanied, if needed, by experts of demonstrated
professional experience and knowledge in the fields covered by the present Protocol who
shall be selected from a roster of experts prepared on the basis of proposals made by the
States Parties, the Office of the United Nations High Commissioner for Human Rights and
the United Nations Centre for International Crime Prevention. In preparing the roster, the
States Parties concerned shall propose no more than five national experts. The State Party
concerned may oppose the inclusion of a specific expert in the visit, whereupon the
Subcommittee on Prevention shall propose another expert.
4. If the Subcommittee on Prevention considers it appropriate, it may propose a short followup
visit after a regular visit.
Article 14
1. In order to enable the Subcommittee on Prevention to fulfil its mandate, the States Parties
to the present Protocol undertake to grant it:
(a) Unrestricted access to all information concerning the number of persons deprived of their
liberty in places of detention as defined in article 4, as well as the number of places and their
location;
(b) Unrestricted access to all information referring to the treatment of those persons as well
as their conditions of detention;
(c) Subject to paragraph 2 below, unrestricted access to all places of detention and their
installations and facilities;
(d) The opportunity to have private interviews with the persons deprived of their liberty
without witnesses, either personally or with a translator if deemed necessary, as well as with
any other person who the Subcommittee on Prevention believes may supply relevant
information;
(e) The liberty to choose the places it wants to visit and the persons it wants to interview.
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2. Objection to a visit to a particular place of detention may be made only on urgent and
compelling grounds of national defence, public safety, natural disaster or serious disorder in
the place to be visited that temporarily prevent the carrying out of such a visit. The existence
of a declared state of emergency as such shall not be invoked by a State Party as a reason
to object to a visit.
Article 15
No authority or official shall order, apply, permit or tolerate any sanction against any person
or organization for having communicated to the Subcommittee on Prevention or to its
delegates any information, whether true or false, and no such person or organization shall
be otherwise prejudiced in any way.
Article 16
1. The Subcommittee on Prevention shall communicate its recommendations and
observations confidentially to the State Party and, if relevant, to the national preventive
mechanism.
2. The Subcommittee on Prevention shall publish its report, together with any comments of
the State Party concerned, whenever requested to do so by that State Party. If the State
Party makes part of the report public, the Subcommittee on Prevention may publish the
report in whole or in part. However, no personal data shall be published without the express
consent of the person concerned.
3. The Subcommittee on Prevention shall present a public annual report on its activities to
the Committee against Torture.
4. If the State Party refuses to cooperate with the Subcommittee on Prevention according to
articles 12 and 14, or to take steps to improve the situation in the light of the
recommendations of the Subcommittee on Prevention, the Committee against Torture may,
at the request of the Subcommittee on Prevention, decide, by a majority of its members,
after the State Party has had an opportunity to make its views known, to make a public
statement on the matter or to publish the report of the Subcommittee on Prevention.
PART IV
National preventive mechanisms
Article 17
Each State Party shall maintain, designate or establish, at the latest one year after the entry
into force of the present Protocol or of its ratification or accession, one or several
independent national preventive mechanisms for the prevention of torture at the domestic
level. Mechanisms established by decentralized units may be designated as national
preventive mechanisms for the purposes of the present Protocol if they are in conformity with
its provisions.
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Article 18
1. The States Parties shall guarantee the functional independence of the national preventive
mechanisms as well as the independence of their personnel.
2. The States Parties shall take the necessary measures to ens ure that the experts of the
national preventive mechanism have the required capabilities and professional knowledge.
They shall strive for a gender balance and the adequate representation of ethnic and
minority groups in the country.
3. The States Parties undertake to make available the necessary resources for the
functioning of the national preventive mechanisms.
4. When establishing national preventive mechanisms, States Parties shall give due
consideration to the Principles relating to the status of national institutions for the promotion
and protection of human rights.
Article 19
The national preventive mechanisms shall be granted at a minimum the power:
(a) To regularly examine the treatment of the persons deprived of their liberty in places of
detention as defined in article 4, with a view to strengthening, if necessary, their protection
against torture and other cruel, inhuman or degrading treatment or punishment;
(b) To make recommendations to the relevant authorities with the aim of improving the
treatment and the conditions of the persons deprived of their liberty and to prevent torture
and other cruel, inhuman or degrading treatment or punishment, taking into consideration
the relevant norms of the United Nations;
(c) To submit proposals and observations concerning existing or draft legislation.
Article 20
In order to enable the national preventive mechanisms to fulfil their mandate, the States
Parties to the present Protocol undertake to grant them:
(a) Access to all information concerning the number of persons deprived of their liberty in
places of detention as defined in article 4, as well as the number of places and their location;
(b) Access to all information referring to the treatment of those persons as well as their
conditions of detention;
(c) Access to all places of detention and their installations and facilities;
(d) The opportunity to have private interviews with the persons deprived of their liberty
without witnesses, either personally or with a translator if deemed necessary, as well as with
any other person who the national preventive mechanism believes may supply relevant
information;
(e) The liberty to choose the places they want to visit and the persons they want to interview;
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(f) The right to have contacts with the Subcommittee on Prevention, to send it information
and to meet with it.
Article 21
1. No authority or official shall order, apply, permit or tolerate any sanction against any
person or organization for having communicated to the national preventive mechanism any
information, whether true or false, and no such person or organization shall be otherwise
prejudiced in any way.
2. Confidential information collected by the national preventive mechanism shall be
privileged. No personal data shall be published without the express consent of the person
concerned.
Article 22
The competent authorities of the State Party concerned shall examine the recommendations
of the national preventive mechanism and enter into a dialogue with it on possible
implementation measures.
Article 23
The States Parties to the present Protocol undertake to publish and disseminate the annual
reports of the national preventive mechanisms.
PART V
Declaration
Article 24
1. Upon ratification, States Parties may make a declaration postponing the implementation of
their obligations under either part III or part IV of the present Protocol.
2. This postponement shall be valid for a maximum of three years. After due representations
made by the State Party and after consultation with the Subcommittee on Pre vention, the
Committee against Torture may extend that period for an additional two years.
PART VI
Financial provisions
Article 25
1. The expenditure incurred by the Subcommittee on Prevention in the implementation of the
present Protocol shall be borne by the United Nations.
2. The Secretary-General of the United Nations shall provide the necessary staff and
facilities for the effective performance of the functions of the Subcommittee on Prevention
under the present Protocol.
Article 26
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1. A Special Fund shall be set up in accordance with the relevant procedures of the General
Assembly, to be administered in accordance with the financial regulations and rules of the
United Nations, to help finance the implementation of the recommendations made by the
Subcommittee on Prevention after a visit to a State Party, as well as education programmes
of the national preventive mechanisms.
2. The Special Fund may be financed through voluntary contributions made by
Governments, intergovernmental and non-governmental organizations and other private or
public entities.
PART VII
Final provisions
Article 27
1. The present Protocol is open for signature by any State that has signed the Convention.
2. The present Protocol is subject to ratification by any State that has ratified or acceded to
the Convention. Instruments of ratification shall be deposited with the Secretary-General of
the United Nations.
3. The present Protocol shall be open to accession by any State that has ratified or acceded
to the Convention.
4. Accession shall be effected by the deposit of an instrument of accession with the
Secretary-General of the United Nations.
5. The Secretary-General of the United Nations shall inform all States that have signed the
present Protocol or acceded to it of the deposit of each instrument of ratification or
accession.
Article 28
1. The present Protocol shall enter into force on the thirtieth day after the date of deposit with
the Secretary-General of the United Nations of the twentieth instrument of ratification or
accession.
2. For each State ratifying the present Protocol or acceding to it after the deposit with the
Secretary-General of the United Nations of the twentieth instrument of ratification or
accession, the present Protocol shall enter into force on the thirtieth day after the date of
deposit of its own instrument of ratification or accession.
Article 29
The provisions of the present Protocol shall extend to all parts of federal States without any
limitations or exceptions.
Article 30
No reservations shall be made to the present Protocol.
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Article 31
The provisions of the present Protocol shall not affect the obligations of States Parties under
any regional convention instituting a system of visits to places of detention. The
Subcommittee on Prevention and the bodies established under such regional conventions
are encouraged to consult and cooperate with a view to avoiding duplication and promoting
effectively the objectives of the present Protocol.
Article 32
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.
Article 33
1. Any State Party may denounce the present Protocol at any time by written notification
addressed to the Secretary-General of the United Nations, who shall thereafter inform the
other States Parties to the present Protocol and the Convention. Denunciation shall take
effect one year after the date of receipt of the notification by the Secretary-General.
2. Such a denunciation shall not have the effect of releasing the St ate Party from its
obligations under the present Protocol in regard to any act or situation that may occur prior
to the date on which the denunciation becomes effective, or to the actions that the
Subcommittee on Prevention has decided or may decide to take with respect to the State
Party concerned, nor shall denunciation prejudice in any way the continued consideration of
any matter already under consideration by the Subcommittee on Prevention prior to the date
on which the denunciation becomes effective.
3. Following the date on which the denunciation of the State Party becomes effective, the
Subcommittee on Prevention shall not commenceconsideration of any new matter regarding
that State.
Article 34
1. Any State Party to the present Protocol may propose an amendment and file it with the
Secretary-General of the United Nations. The Secretary-General shall thereupon
communicate the proposed amendment to the States Parties to the present Protocol with a
request that they notify him whether they favour a conference of States Parties for the
purpose of considering and voting upon the proposal. In the event that within four months
from the date of such communication at least one third of the States Parties favour such a
conference, the Secretary-General shall convene the conference under the auspices of the
United Nations. Any amendment adopted by a majority of two thirds of the States Parties
present and voting at the conference shall be submitted by the Secretary-General of the
United Nations to all States Parties for acceptance.
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2. An amendment adopted in accordance with paragraph 1 of the present article shall come
into force when it has been accepted by a two -thirds majority of the States Parties to the
present Protocol in accordance with their respective constitutional processes.
3. When amendments come into force, they shall be binding on those States Parties that
have accepted them, other States Parties still being bound by the provisions of the present
Protocol and any earlier amendment that they have accepted.
Article 35
Members of the Subcommittee on Prevention and of the national preventive mechanisms
shall be accorded such privileges and immunities as are necessary for the independent
exercise of their functions. Members of the Subcommittee on Prevention shall be accorded
the privileges and immunities specified in section 22 of the Convention on the Privileges and
Immunities of the United Nations of 13 February 1946, subject to the provisions of section 23
of that Convention.
Article 36
When visiting a State Party, the members of the Subcommittee on Prevention shall, without
prejudice to the provisions and purposes of the present Protocol and such privileges and
immunities as they may enjoy:
(a) Respect the laws and regulations of the visited State;
(b) Refrain from any action or activity incompatible with the impartial and international nature
of their duties.
Article 37
1. The present Protocol, of which the Arabic, Chinese, English, French, Russian and
Spanish texts are equally authentic, shall be de posited with the Secretary-General of the
United Nations.
2. The Secretary-General of the United Nations shall transmit certified copies of the present
Protocol to all States.
D) India’s Status with respect to various International Instruments
International Covenants/ Conventions/ Treaties Ratified/ Acceded/ Signed by
India
1) The Universal Declaration of Human Rights (UDHR)
2) The International Covenant on Economic, Social and Cultural Rights (ICESCR) –
Ratified on 10 th April, 1979
3) The International Covenant on Civil and Political Rights (ICCPR) – Acceded on 10 th
April, 1979.
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4) The International Convention on Elimination of all forms of Racial Discrimination –
Ratified on 3 rd December, 1968.
5) The Convention on Rights of the Child – Acceded to on 11 th December, 1992.
6) The Convention on Elimination of all Forms of Discrimination Against Women
(CEDAW)– Ratified on 9 th July, 1993.
7) Convention against Torture and other Cruel, Inhuman or Degrading Treatment or
Punishment – Signed on 8 th October, 1997.
8) International Covenant on Suppression and Punishment of the Crime of Apartheid –
Acceded to on 22 nd September, 1977.
9) The Convention on the Prevention and Punishment on the Crime on Genocide –
Ratified on 27 th August, 1959.
10) Convention on the Non-Applicability of Statutory Limitations to War Crimes and
Crimes against Humanity – Signed on 12 th January, 1971.
11) Slavery Convention ratified 18 th June, 1927.
12) Protocol amending the Slavery Convention signed at Geneva on 25 th September,
1926
13) Supplementary Convention on the Evolution of Slavery, Slave Trade and Institutions
and Practice similar to Slavery – Ratified on 23 rd June, 1960.
14) Convention for the Suppression of the Traffic in Persons and of the Exploitation of
the Prostitution of others – Ratified on 9 th January, 1953.
15) Convention on the Nationality of the Married Women - Signed on 15 th May, 1957.
16) Convention on the Political Rights of the Women – Ratified on 1 st November, 1961.
1) Form to Submit a Communication on a Victim of an Enforced or Involuntary
Disappearance
Important: Elements indicated with (*) are mandatory.
Note: If any information contained in the report, besides the mandatory requested elements,
should be kept confidential, please mark the word “CONFIDENTIAL” beside the relevant
entry.
CASES SUBMITTED BY ORGANISATIONS:
Please note that if this case is being submitted to the Working Group by an
organisation, it is necessary for your organisation to carry out follow-up in
the future on each case by conveying Government information to the family
sent from the Working Group, and from the family to the Working Group
until the fate or whereabouts of the person are determined. In that regard,
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please indicate whether the reported victim's family has given their direct
consent that this case is being submitted by your organisation to the
Working Group on their behalf and whether your organisation will be able
to provide follow up information between the family and the Working
Group.
*Consent of victim’s family given directly to your organisation to submit this case:
Yes, direct consent received from family ____
No consent from family___
*If this case is being submitted by an organisation, will it be able to provide
follow up by conveying information between the family and the Working Group:
Yes _____ No____
1. Identity of the disappeared person:
(a) Family name (*):
........................................................................................................
(b) First name (*):
............................................................................................................
(c) Sex: __ male / __ female
(d) Date of birth:
......................................................................................................................
(e) Identity document:........................................................... Nr:
......................................
Date of issue: ....................................
…………………………………
Place of issue:
(f) Address of usual residence:
................................................................................................
.................................................................................................................................
..........
(g) Indigenous: __ yes / __ no
(h) Pregnant: __ yes / __ no
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2. Date on which the disappearance occurred (at least as to the month and year)
(*):
Date of disappearance:
.........................................................................................................
3. Place of arrest or abduction, or where the disappeared person was last seen
(*):
Location (if possible street, city, province or other relevant indications):
....................................
.........................................................................................................................................
.........
..........................................................................................................................................
..........
4. Forces (State or State-supported) believed to be responsible for the disappearance
(*):
(a) If the perpetrators are believed to be State agents, please specify (military, police,
persons in uniform or civilian clothes, agents of security services, unit to which they belong,
rank and functions, etc.) and indicate why they are believed to be responsible; be as precise
as possible:
.................................................................................................................................
..........
.................................................................................................................................
..........
.................................................................................................................................
..........
(b) If identification as State agents is not possible, why do you believe that Government
authorities, or persons linked to them, are responsible for the incident?
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.................................................................................................................................
..........
.................................................................................................................................
..........
.................................................................................................................................
..........
.................................................................................................................................
..........
.................................................................................................................................
..........
(c) If there are witnesses to the incident, indicate their names. If they wish to remain
anonymous, indicate if they are relatives, by-passers, etc.; if there is evidence, please
specify:
……………………..............................................................................................................
.........
.................................................................................................................................
..........
................................................................................................................................
..........
5. Action taken by the relatives or others to locate the person (inquiries with
police, jail, human rights commission, habeas corpus petition etc.) (*):
(a) Indicate if complaints have been filed, when, by whom, and before which
organ.
.................................................................................................................................
..........
.................................................................................................................................
..........
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.................................................................................................................................
..........
.................................................................................................................................
..........
.................................................................................................................................
..........
(b) Other steps taken:
.....................................................
........................................................................................................
...................... ..................
................................................................................................... ................
.................................. ..................
....................................................................................... ................
(c) If action was not possible, please explain why:
.....................................................
........................................................................................................
.....................................................
........................................................................................................
.....................................................
........................................................................................................
6. Identity of the person or organization submitting the report (*):
(a) Family name:
................................................................................................................................
(b) First name:.............................................
…………........................................................................
(c) Relationship with the disappeared person:
....................................................................................
(d) Organization (if applicable, see also
below):...................................................................................
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(e) Address (telephone, fax, e-mail):
................................................................................... ..............
.....................................................
........................................................................................................
(f) Please state whether you would like your identity to be kept confidential
Yes, keep my identity confidential: _____ No request for confidentiality:
_______
Additional Information on the case
Please indicate any other relevant information that has not been answered in the
previous questions. If one of the mandatory elements noted (*) in this report
could not be answered, please indicate why.
.....................................................
........................................................................................................
.....................................................
........................................................................................................
.....................................................
........................................................................................................
.....................................................
........................................................................................................
.....................................................
........................................................................................................
Date:
Signature of author:
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Address to submit cases:
e-mail:
fax:
post:
wgeid@ohchr.org
4122 917 9006, attn: WGEID
WGEID
OHCHR, Palais des Nations
8-14 Avenue de la Paix
CH-1211 Geneva 10
Switzerland
2) Model questionnaire to be completed by persons alleging torture or
their representatives
Information on the torture of a person should be transmitted to the Special Rapporteur in
written form and sent to:
Special Rapporteur on Torture
c/o Office of the High Commissioner for Human Rights
United Nations Office at Geneva
CH-1211 Geneva 10, Switzerland
E-mail: urgent-action@ohchr.org
Although it is important to provide as much detail as possible, the lack of a comprehensive
accounting should not necessarily preclude the submission of reports. However, the Special
Rapporteur can only deal with clearly identified individual cases containing the following
minimum elements of information:
a. Full name of the victim;
b. Date on which the incident(s) of torture occurred (at least as to the month and year);
c. Place where the person was seized (city, province, etc.) And location at which the torture
was carried out (if known);
d. Indication of the forces carrying out the torture;
e. Description of the form of torture used and any injury suffered as a result;
f. Identify of the person or organization submitting the report (name and address, which will
be kept confidential).
Additional sheets should be attached where space does not allow for a full rendering of the
information requested. Also, copies of any relevant corroborating documents, such as
medical or police records should be supplied where it is believed that such information may
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contribute to a fuller accounting of the incident. Only copies and not originals of such
documents should be sent.
I. Identity of the person(s) subjected to torture
A. Family Name
B. First and other names
C. Sex: Male Female
D. Birth date or age
E. Nationality
F. Occupation
G. Identity card number (if applicable)
F. Activities (trade union, political, religious, humanitarian/ solidarity, press, etc.)
G. Residential and/or work address
II. Circumstances surrounding torture
A. Date and place of arrest and subsequent torture
B. Identity of force(s) carrying out the initial detention and/or torture (police, intelligence
services, armed forces, paramilitary, prison officials, other)
C. Were any person, such as a lawyer, relatives or friends, permitted to see the victim during
detention? If so, how long after the arrest?
D. Describe the methods of torture used
E. What injuries were sustained as a result of the torture?
F. What was believed to be the purpose of the torture?
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G. Was the victim examined by a doctor at any point during or after his/her ordeal? If so,
when? Was the examination performed by a prison or government doctor?
H. Was appropriate treatment received for injuries sustained as a result of the torture?
I. Was the medical examination performed in a manner which would enable the doctor to
detect evidence of injuries sustained as a result of the torture? Were any medical reports or
certificates issued? If so, what did the reports reveal?
J. If the victim died in custody, was an autopsy or forensic examination performed and which
were the results?
III. Remedial action
Were any domestic remedies pursued by the victim or his/her family or representatives
(complaints with the forces responsible, the judiciary, political organs, etc.)? If so, what was
the result?
IV. Information concerning the author of the present report:
A. Family Name
B. First Name
C. Relationship to victim
D. Organization represented, if any
E. Present full address
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3) Confidential Violence against Women
Information form
1. PETITIONER: (This information, if taken up by the Special Rapporteur, will remain confidential).
(a) Name of person/organization:
..................................................................................................................................................................
..................................................................................................................................................................
..................................................................................................................................................................
(b) relationship to victim(s).......................................................................................................................
(c) Address:
..................................................................................................................................................................
..................................................................................................................................................................
..................................................................................................................................................................
..................................................................................................................................................................
..................................................................................................................................................................
(d) Fax/tel/e-mail, web-site:
........................................................................................................................
(e) Date petition sent:.........................................................................................................................
(f) Other:
..................................................................................................................................................................
..................................................................................................................................................................
2. ALLEGED INCIDENT
(i) information about the victim(s):
(a) Name: ..................................................................................................................................
(b) Sex: ......................................................................................
(c) Date of Birth or Age:............................................................................................
(d) Nationality:..........................................................................................................................
(e) Occupation:
..................................................................................................................................................................
(f) Ethnic / religious / social background, if relevant:
......................................................................................................................................................
(g) Address:
..................................................................................................................................................................
..................................................................................................................................................................
..................................................................................................................................................................
..................................................................................................................................................................
..................................................................................................................................................................
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(h) Other relevant information: (such as passport, identity card number):
..................................................................................................................................................................
(i) Has the victim(s) given you her consent to send this communication on her behalf?
.....................................................................................................
(j) Has the victim(s) been informed that, if the Special Rapporteur decides to take action on her behalf,
a letter concerning what happened to her will be sent to the authorities?
..................................................................................................................................................................
(k) Is the victim(s) aware that, if this communication is taken up, a summary of what happened to her
will appear in a public report of the Special Rapporteur?
..................................................................................................................................................................
(l) Would the victim(s) prefer that her full name or merely her initials appear in the public report of the
Special Rapporteur? ..............................................
..................................................................................................................................................................
(Please note that the full names of victims appear in communications with governments unless it is
indicated that exposing the victims’ names to the government would place the victims at risk of further
harm. In the public report, the names of victims under the age of 18 and victims of sexual violence will
not be disclosed, but initials will be used)
(ii) information regarding the incident:
(a) Detailed description of human rights violation:
..................................................................................................................................................................
..................................................................................................................................................................
..................................................................................................................................................................
..................................................................................................................................................................
..................................................................................................................................................................
..................................................................................................................................................................
..................................................................................................................................................................
..................................................................................................................................................................
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(b) Date: ..................................................... (c) Time: .................................................... (d)
Location/country: .......................................................
(e) Number of assailants: .........
(f) Are the assailant(s) known or related to the victim? If so, how?
................................................................................................................................
..................................................................................................................................................................
..............................................................
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(g) Name or nickname of assailant(s) (if unknown, description, scars or body marks such as tattoos,
clothes/uniform worn, title/status, vehicle used):
..................................................................................................................................................................
..............................................................
..................................................................................................................................................................
..............................................................
..................................................................................................................................................................
..............................................................
(h) Does the victim believe she was specifically targeted because of her sex?
If yes, why?
..................................................................................................................................................................
..................................................................................................................................................................
..................................................................................................................................................................
..................................................................................................................................................................
(i) Has the incident been reported to the relevant State authorities?
..............................................................................................................................
If so, which authorities?
..................................................................................................................................................................
..................................................................................................................................................................
..................................................................................................................................................................
..................................................................................................................................................................
When?
..................................................................................................................................................................
..................................................................................................................................................................
(j) Have the authorities taken any action after the incident?
.........................................................................................................................................
If so, which authorities?
..................................................................................................................................................................
..................................................................................................................................................................
What action?
..................................................................................................................................................................
..................................................................................................................................................................
..................................................................................................................................................................
..................................................................................................................................................................
..................................................................................................................................................................
..................................................................................................................................................................
When?
..................................................................................................................................................................
..................................................................................................................................................................
..................................................................................................................................................................
..................................................................................................................................................................
(l) If the violation was committed by private individuals or groups (rather than government officials),
include any information which might indicate that the Government failed to exercise due diligence to
prevent, investigate, punish, and ensure compensation for the violations.
..................................................................................................................................................................
..................................................................................................................................................................
..................................................................................................................................................................
..................................................................................................................................................................
..................................................................................................................................................................
..................................................................................................................................................................
..................................................................................................................................................................
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(m) Has the victim seen a doctor after the incident took place? Are there any medical
certificates/notes relating to the incident concerned?
..................................................................................................................................................................
............................................................
..................................................................................................................................................................
............................................................
..................................................................................................................................................................
............................................................
..................................................................................................................................................................
............................................................
(iii) Laws or policies which are or are likely to cause or contribute to violence against women
(a) If your submission concerns a law or policy, please summarize it and the effects of its
implementation on women’s human rights. Provide concrete examples, when available.
..................................................................................................................................................................
..................................................................................................................................................................
..................................................................................................................................................................
..................................................................................................................................................................
..................................................................................................................................................................
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..................................................................................................................................................................
..................................................................................................................................................................
..................................................................................................................................................................
..................................................................................................................................................................
..................................................................................................................................................................
..................................................................................................................................................................
..................................................................................................................................................................
Please inform the Special Rapporteur of any further information which becomes available after you
have submitted this form, including if your concern has been adequately addressed, or a final
outcome has been determined in an investigation or trial, or an action which was planned or
threatened has been carried out.
PLEASE RETURN TO
THE SPECIAL RAPPORTEUR ON VIOLENCE AGAINST WOMEN, OFFICE OF THE HIGH
COMMISSIONER FOR HUMAN RIGHTS,
OHCHR-UNOG, 1211 GENEVA 10, SWITZERLAND
(Fax: 00 41 22 917 9006, e-mail: urgent-action@ohchr.org
4) Special Rapporteur on extrajudicial, summary or arbitrary executions -
General Information
Model Questionnaire
The Special Rapporteur undertakes action in the following cases:
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(a) Violations of the right to life in connection with the death penalty. The Special Rapporteur
intervenes when capital punishment is imposed after an unfair trial, or in case of a breach of
the right to appeal or the right to seek pardon or commutation of sentence. He also
intervenes if the convicted is a minor, a mentally retarded or insane person, a pregnant
woman or a recent mother;
(b) Death threats and fear of imminent extrajudicial executions by state officials, paramilitary
groups, private individuals or groups cooperating with or tolerated by the Government, as
well as unidentified persons who may be linked to the categories mentioned above;
(c) Deaths in custody owing to torture, neglect or the use of force, or life-threatening
conditions of detention;
(d) Deaths owing to the use of force by law enforcement officials, or persons acting in direct
or indirect compliance with the State, when the use of force is inconsistent with the criteria of
absolute necessity and proportionality;
(e) Deaths owing to attacks by security forces of the State, by paramilitary groups, death
squads or other private forces cooperating with or tolerated by the Government;
(f) Violations of the right to life during armed conflicts, especially of the civilian population,
contrary to humanitarian law;
(g) Expulsion or refoulement of persons to a country where their lives are in danger;
(h) Genocide;
(I) Breach of the obligation to investigate alleged violations of the right to life and to bring
those responsible to justice;
(j) Breach of the obligation to provide adequate compensation to victims of violations of the
right to life.
Address:
Reports of extrajudicial, summary or arbitrary executions may be transmitted to the following
address:
Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions
c/o OHCHR-UNOG, 1211 Geneva 10, Switzerland
Fax: (+41 22) 917 90 06
or e-mail to: E-mail: urgent-action@ohchr.org
Note: If any information contained in the questionnaire should be kept confidential please
mark "CONFIDENTIAL" beside the relevant entry. Do not hesitate to attach additional
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sheets, if the space provided is not sufficient.
I. Identity of the person concerned:
Note: if more than one person is concerned, please fill out separate questionnaires for each
person
1. Family
name:..................................................................................................................................
2. First
name:.......................................................................................................................................
3. Sex: __ male __ female
4. Birth date or
age:............................................................................................................................
5.
Nationality(ies):..........................................................................................................................
...........
6. Civil status (single, married, etc.):
7. Identity document:........................................
..........................................................................
Nr.:..............................................................................................
Issued by:................................................................................................................................
Date of issue:.............................................................................................................................
8. Profession and/or activity (e.g. trade union, political, religious,
humanitarian/solidarity/human rights, etc.)
...................................................................................................................................................
..........
...................................................................................................................................................
..........
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9. Address of usual residence:..................................................................................................
...................................................................................................................................................
..........
10. Is there a link to other cases/ persons? Please specify:
...................................................................................................................................................
.........
...................................................................................................................................................
..........
...................................................................................................................................................
..........
II. Information regarding the incident:
1.
Date:...........................................................................................................................................
..
2.
Place:.........................................................................................................................................
.....
3.
Time:..........................................................................................................................................
....
4. The nature of the incident: Please describe the circumstances of the incident, including
the following categories:
(a) death penalty, or fair trial guarantees, please detail (unfair laws or proceedings, charges,
eventual appeals, execution is imminent, etc.)
(b) imminent violation of the right to life is feared (death threats, imminent expulsion or
refoulement leading to a life-threatening situation, etc.), please detail.
(c) others (death in custody, death during an armed conflict, death due to excessive use of
force by law enforcement officials, death due to attacks by security forces of State,
paramilitary or private forces, breach of obligation to investigate, etc.):
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...................................................................................................................................................
.........
...................................................................................................................................................
.........
...................................................................................................................................................
.........
...................................................................................................................................................
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...................................................................................................................................................
..........
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...................................................................................................................................................
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...................................................................................................................................................
..........
...................................................................................................................................................
..........
...................................................................................................................................................
.........
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III. Forces believed to be responsible for the incident:
(a) if the perpetrators are believed to be State agents, please specify (military, police,
persons in uniform or civilian clothes, agents of security services, unit to which they belong,
rank and functions, etc.) and indicate why they are believed to be responsible; be as precise
as
possible:
...................................................................................................................................................
..........
...................................................................................................................................................
..........
...................................................................................................................................................
..........
...................................................................................................................................................
..........
...................................................................................................................................................
..........
(b) if an identification as State agents is not possible, why do you believe that Government
authorities, or persons linked to them, are responsible for the incident?
...................................................................................................................................................
..........
...................................................................................................................................................
..........
...................................................................................................................................................
..........
...................................................................................................................................................
.........
...................................................................................................................................................
.........
...................................................................................................................................................
.........
(c) if there are witnesses to the incident, indicate their names. If they wish to remain
anonymous, indicate if they are relatives, by-passers, etc.; if there is evidence, please
specify:
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...................................................................................................................................................
..........
...................................................................................................................................................
..........
...................................................................................................................................................
..........
...................................................................................................................................................
..........
IV. Steps taken by the victim or his/her family:
(a) Indicate if complaints have been filed, when, by whom, and before which organ.
...................................................................................................................................................
..........
...................................................................................................................................................
..........
...................................................................................................................................................
..........
...................................................................................................................................................
..........
...................................................................................................................................................
..........
(b) Other steps taken:
...................................................................................................................................................
..........
...................................................................................................................................................
..........
...................................................................................................................................................
..........
...................................................................................................................................................
.........
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V. Steps taken by the authorities:
(a) Indicate whether or not there have been investigations by the State authorities; if so,
what kind of investigations? Progress and status of these investigations; which other
measures have been taken (e.g. autopsy)?
...................................................................................................................................................
..........
...................................................................................................................................................
..........
...................................................................................................................................................
..........
...................................................................................................................................................
..........
(b) in case of complaints by the victim or its family, how have the organs dealt with them?
What is the outcome of those proceedings?
...................................................................................................................................................
..........
...................................................................................................................................................
..........
...................................................................................................................................................
..........
...................................................................................................................................................
..........
...................................................................................................................................................
..........
VI. Identity of the person submitting the case
1. Family
name:...................................................................................................................................
2. First
name(s):..................................................................................................................................
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3. Status: individual, group, non-governmental organization, inter-governmental agency,
Government. Please specify:
...................................................................................................................................................
..........
...................................................................................................................................................
..........
4. Address (telephone, fax, e-mail):
...................................................................................................................................................
..........
...................................................................................................................................................
..........
...................................................................................................................................................
..........
...................................................................................................................................................
..........
...................................................................................................................................................
..........
5. Please state whether you want your identity to be kept confidential:
........................................................
Date:
Signature of author:
339

5) Special Rapporteur on Sale of Children, child prostitution and child
pornography
Individual complaints and model questionnaire
The Commission on Human Rights has "requested the Special Rapporteur, in carrying out
his mandate, to continue to seek and receive credible and reliable information from
Governments, United Nations bodies, specialised agencies and intergovernmental and nongovernmental
organisations". (Commission resolutions 1993/82, 1994/92).
The Special Rapporteur on the sale of children, child prostitution and child pornography
would like to encourage the above-mentioned actors, as well as individuals, to submit to him
any reliable information they may possess with regard to violations of children's rights of this
nature. For this purpose the Special Rapporteur has developed this information sheet to
facilitate the submission of information. Subsequently, the Special Rapporteur may decide to
raise with Governments to request their comments and observations on the matter.
The questionnaire below should be sent to:
-Special Rapporteur on the sale of children, child prostitution and child pornography
c/o Office Of the High Commissioner for Human Rights
United Nations at Geneva
8-14 ave de la Paix
1211 Geneva 10
Switzerland
-Fax: (+41 22) 917 90 06
-E-mail: urgent-action@ohchr.org (please include in the subject box: Special Rapporteur on
the sale of children, child prostitution and child pornography)
General Information
The Special Rapporteur undertakes action in the following cases:
- sale of children: "any act or transaction whereby a child is transferred by any person
or group of persons to another for remuneration or any other consideration"
(Sale of children could be for purposes of i.e, commercial sexual exploitation, use in
criminal activities, begging, use in armed conflict, for sports, forced labour, for
adoption, for marriage, for the use of their organs, or for other purposes)
- child prostitution: "the use of a child in sexual activities for remuneration or any other
form of consideration."
- child pornography: "any representation, by whatever means, of a child engaged in
real or simulated explicit sexual activities or any representation of the sexual parts of
a child for primarily sexual purposes."
- trafficking of children for the purposes outlined above
- sexual abuse against children when there are allegations of trafficking
340

Notes
- where a child is at serious risk of being victim of such offences
1. The objective of this questionnaire is to have access to precise information on alleged
violations of the rights of the child. The Special Rapporteur may raise his concerns about
the incidents reported and request Governments to make observations and comments
on the matter.
2. If any information contained in the questionnaire should be kept confidential please mark
"CONFIDENTIAL" beside the relevant entry.
3. Do not hesitate to attach additional sheets, if the space provided is not sufficient.
4. If you have any questions concerning the completion of this form, please do not hesitate
to contact the Special Rapporteur.
Information Sheet - Questionnaire
1. GENERAL INFORMATION
Does the incident involve an individual or a group?
If it involves a group please state the number of people involved and the
characteristics of the group: Number of boys/adolescents:
Number of girls/adolescents:
Country (ies) in which the incident took place:
Nationality (ies) of the victim(s):
2. IDENTITY OF THE PERSONS CONCERNED
Note: if more than one person is concerned, please attach relevant information on each
person separately.
Family name:
First name:
Sex:
Birth date or age:
Nationality(ies):
Ethnic background (if relevant):
3. INFORMATION REGARDING THE ALLEGED VIOLATION
Date:
Place (location - country/countries):
Time:
The nature of the incident (please describe the circumstances with reference to the
categories listed under General Information)
Number of perpetrator(s):
341

Are the perpetrator (s) known to the victim?
Nationality of perpetrator (s)
Agents believed to be responsible for the alleged violation:
State agents (specify):
Non-State agents (specify):
If it is unclear whether they were state or non-state agents, please explain why.
If the perpetrators are believed to be State-agents, please specify (military, police,
agents of security services, unit to which they belong, rank and functions, etc.), and
indicate why they are believed to be responsible; be as precise as possible.
If an identification as State agents is not possible, do you believe that Government
authorities or persons linked to them, are responsible for the incident, why?
If there are witnesses to the incident, indicate their names, age, relationship and
contact address. If they wish to remain anonymous, indicate if they are relatives, bypassers,
etc.; if there is evidence, please specify.
4. STEPS TAKEN BY THE VICTIM, HIS/HER FAMILY OR ANY ONE ELSE ONHIS/HER
BEHALF?
Indicate if complaints have been filed, when, by whom, and before which State
authorities or competent bodies (i.e, police, prosecutor, court)
Other steps taken
- Steps taken by the authorities:
Indicate whether or not, to your knowledge, there have been investigations by the
State authorities; if so, what kind of investigations? Progress and status of these
investigations; which other measures have been taken?
In case of complaints by the victim or its family, how have those authorities of other
competent bodies dealt with them? What has been the outcome of those
proceedings?
5. IDENTITY OF THE PERSON OR INSTITUTION SUBMITTING THIS FORM
Family name
First name
Status: individual, group, non-governmental organization, inter-governmental agency,
Government. Please specify:
Contact number or address (please indicate country and area code)
Fax
Tel
Email
Please state whether you want your identity to be kept confidential
Date you are submitting this form
Signature of author
342

6) Special Rapporteur on Contemporary forms of racism, racial
discrimination, xenophobia and related intolerance
Individual complaints
Upon receiving reliable and credible information the Special Rapporteur transmits, either
under the form of an allegation letter or urgent appeal, information or case summaries
concerning alleged violations regarding contemporary forms of racism, racial discrimination
and related intolerance to the State concerned, in order to induce the national authority to
undertake the necessary investigations of all the incidents or individual cases reported. The
Rapporteur will also ask to be kept informed of the outcome of the investigations carried out.
Consideration of communications concerning human rights violations will enable
contemporary forms of racial discrimination to be detected and identified accurately. The
analysis of these cases of alleged violations and government replies will help towards a
better grasp of manifestations of racial discrimination and thus help to identify and determine
indicators of its contemporary forms.
Please note, that as a general rule, both urgent appeals and letters of allegation remain
confidential until published in the annual report of the Special Rapporteur to the Commission
on Human Rights. A summary of such communications and the replies received from the
concerned State are formally included in the Special Rapporteur's annual report to the
Commission.
Some special procedures mechanisms intervene directly with Governments on specific
allegations of violations of human rights that come within their mandates. The intervention
can relate to a human rights violation that has already occurred, is ongoing, or which has a
high risk of occurring. The process, in general, involves the sending of a letter to the
concerned Government requesting information and comments on the allegation and that
preventive or investigatory action be taken.
The decision to intervene is at the discretion of the special procedure mandate holder and
will depend on the various criteria established by him or her. The criteria will generally relate
to: the reliability of the source and the credibility of information received; the detail provided;
and the scope of the mandate itself. However, it must be emphasized that the criteria and
the procedure involved in responding to an individual complaint vary, so it is necessary to
submit a complaint in accordance with the specific requirements established by each special
procedure.
The following minimum information must be provided for all special procedures in order for
the complaint to be assessed:
• Identification of the alleged victim(s);
• Identification of the alleged perpetrators of the violation;
• Identification of the person(s) or organization(s) submitting the communication
(this information will be kept confidential);
343

• Date and place of incident
• A detailed description of the circumstances of the incident in which the alleged
violation occurred.
Other details pertaining to the specific alleged violation may be required by the relevant
thematic mandates (e.g. past and present places of detention of the victim; any medical
certificate issued to the victim; identification of witnesses to the alleged violation; any
measures undertaken to seek redress locally, etc.).
As a general rule, communications that contain abusive language or that are obviously
politically motivated are not considered. Communications should describe the facts of the
incident and the relevant details referred to above clearly and concisely.
To facilitate the examination of reported violations, questionnaires relating to several
mandates are available to persons wishing to report cases of alleged violations. It should,
however, be noted that communications are considered even when they are not submitted in
the form of a questionnaire.
For specific information concerning the individual complaint procedures of each special
procedure mandate please consult the thematic mandates or country mandates lists.
After consulting the requirements established by each mandate for the submission of
individual complaints, a complaint can be submitted by fax to +41 22 917 90 06, by e-mail to
urgent-action@ohchr.org, or by postal mail to:
OHCHR-UNOG
8-14 Avenue de la Paix
1211 Geneva 10
Switzerland
7) Special Rapporteur of the Commission on Human Rights on the
Independence of Judges and Lawyers
Individual Complaints
The Special Rapporteur acts on information submitted to his attention regarding alleged
violations regarding the independence and impartiality of the judiciary and the independence
of the legal profession by sending allegation letters and urgent appeals to concerned
Governments to clarify and/or bring to their attention these cases.
Allegation Letters
Where the information received by the Special Rapporteur is prima facie credible, the
Special Rapporteur will transmit the allegation, usually by letter, to the concerned
Government in order to obtain the Government's response.
344

The credibility of the source of the allegations will be established by the Special Rapporteur
by reference to: the degree of detail presented by the alleged victim about him or herself and
the event or interference alleged; corroborative sources; logic; the laws in force in the
concerned State.
Urgent Appeals
In rare cases of particularly grave allegations of violations, for example, threats to the life of
the alleged victim, the Special Rapporteur will send an urgent appeal to the concerned
Government. This method will follow the procedures established for other thematic
mechanisms.
Whether addressed through a letter or through a cable issued as an urgent appeal, the
Government concerned will be expected to respond expeditiously to the Special
Rapporteur's request for information or explanation. In this regard, the Special Rapporteur
draws attention to Commission resolution 1993/47, in which Governments are encouraged to
so respond.
Please note, that as a general rule, both urgent appeals and letters of allegation remain
confidential until published in the annual report of the Special Rapporteur to the Commission
on Human Rights. A summary of such communications and the replies received from the
concerned State are formally included in the Special Rapporteur's annual report to the
Commission.
Some special procedures mechanisms intervene directly with Governments on specific
allegations of violations of human rights that come within their mandates. The intervention
can relate to a human rights violation that has already occurred, is ongoing, or which has a
high risk of occurring. The process, in general, involves the sending of a letter to the
concerned Government requesting information and comments on the allegation and that
preventive or investigatory action be taken.
The decision to intervene is at the discretion of the special procedure mandate holder and
will depend on the various criteria established by him or her. The criteria will generally relate
to: the reliability of the source and the credibility of information received; the detail provided;
and the scope of the mandate itself. However, it must be emphasized that the criteria and
the procedure involved in responding to an individual complaint vary, so it is necessary to
submit a complaint in accordance with the specific requirements established by each special
procedure.
The following minimum information must be provided for all special procedures in order for
the complaint to be assessed:
• Identification of the alleged victim(s);
• Identification of the alleged perpetrators of the violation;
• Identification of the person(s) or organization(s) submitting the communication
(this information will be kept confidential);
345

• Date and place of incident
• A detailed description of the circumstances of the incident in which the alleged
violation occurred.
Other details pertaining to the specific alleged violation may be required by the relevant
thematic mandates (e.g. past and present places of detention of the victim; any medical
certificate issued to the victim; identification of witnesses to the alleged violation; any
measures undertaken to seek redress locally, etc.).
As a general rule, communications that contain abusive language or that are obviously
politically motivated are not considered. Communications should describe the facts of the
incident and the relevant details referred to above clearly and concisely.
To facilitate the examination of reported violations, questionnaires relating to several
mandates are available to persons wishing to report cases of alleged violations. It should,
however, be noted that communications are considered even when they are not submitted in
the form of a questionnaire.
For specific information concerning the individual complaint procedures of each special
procedure mandate please consult the thematic mandates or country mandates lists.
After consulting the requirements established by each mandate for the submission of
individual complaints, a complaint can be submitted by fax to +41 22 917 90 06, by e-mail to
urgent-action@ohchr.org, or by postal mail to:
OHCHR-UNOG
8-14 Avenue de la Paix
1211 Geneva 10
Switzerland
APPENDIX III
A) Declaration of Human Rights Defenders
Declaration on the Right and Responsibility of Individuals,
Groups and Organs of Society to Promote and Protect Universally
Recognized Human Rights and Fundamental Freedoms
The General Assembly,
General Assembly resolution 53/144
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Reaffirming the importance of the observance of the purposes and principles of the Charter
of the United Nations for the promotion and protection of all human rights and fundamental
freedoms for all persons in all countries of the world,
Taking note of Commission on Human Rights resolution 1998/7 of 3 April 1998, See Official
Records of the Economic and Social Council, 1998, Supplement No. 3 (E/1998/23), chap. II,
sect. A. in which the Commission approved the text of the draft declaration on the right and
responsibility of individuals, groups and organs of society to promote and protect universally
recognized human rights and fundamental freedoms,
Taking note also of Economic and Social Council resolution 1998/33 of 30 July 1998, in
which the Council recommended the draft declaration to the General Assembly for adoption,
Conscious of the importance of the adoption of the draft declaration in the context of the
fiftieth anniversary of the Universal Declaration of Human Rights, Resolution 217 A (III).
1. Adopts the Declaration on the Right and Responsibility of Individuals, Groups and Organs
of Society to Promote and Protect Universally Recognized Human Rights and Fundamental
Freedoms, annexed to the present resolution;
2. Invites Governments, agencies and organizations of the United Nations system and
intergovernmental and non-governmental organizations to intensify their efforts to
disseminate the Declaration and to promote universal respect and understanding thereof,
and requests the Secretary-General to include the text of the Declaration in the next edition
of Human Rights: A Compilation of International Instruments.
85th plenary meeting
9 December 1998
ANNEX
Declaration on the Right and Responsibility of Individuals, Groups and Organs
of Society to Promote and Protect Universally Recognized Human Rights and
Fundamental Freedoms
The General Assembly,
Reaffirming the importance of the observance of the purposes and principles of the Charter
of the United Nations for the promotion and protection of all human rights and fundamental
freedoms for all persons in all countries of the world,
Reaffirming also the importance of the Universal Declaration of Human Rights 2 and the
International Covenants on Human Rights Resolution 2200 A (XXI), annex. as basic
elements of international efforts to promote universal respect for and observance of human
rights and fundamental freedoms and the importance of other human rights instruments
adopted within the United Nations system, as well as those at the regional level,
Stressing that all members of the international community shall fulfil, jointly and separately,
their solemn obligation to promote and encourage respect for human rights and fundamental
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freedoms for all without distinction of any kind, including distinctions based on race, colour,
sex, language, religion, political or other opinion, national or social origin, property, birth or
other status, and reaffirming the particular importance of achieving international cooperation
to fulfil this obligation according to the Charter,
Acknowledging the important role of international cooperation for, and the valuable work of
individuals, groups and associations in contributing to, the effective elimination of all
violations of human rights and fundamental freedoms of peoples and individuals, including in
relation to mass, flagrant or systematic violations such as those resulting from apartheid, all
forms of racial discrimination, colonialism, foreign domination or occupation, aggression or
threats to national sovereignty, national unity or territorial integrity and from the refusal to
recognize the right of peoples to self-determination and the right of every people to exercise
full sovereignty over its wealth and natural resources,
Recognizing the relationship between international peace and security and the enjoyment of
human rights and fundamental freedoms, and mindful that the absence of international
peace and security does not excuse non-compliance,
Reiterating that all human rights and fundamental freedoms are universal, indivisible,
interdependent and interrelated and should be promoted and implemented in a fair and
equitable manner, without prejudice to the implementation of each of those rights and
freedoms,
Stressing that the prime responsibility and duty to promote and protect human rights and
fundamental freedoms lie with the State,
Recognizing the right and the responsibility of individuals, groups and associations to
promote respect for and foster knowledge of human rights and fundamental freedoms at the
national and international levels,
Declares:
Article 1
Everyone has the right, individually and in association with others, to promote and to strive
for the protection and realization of human rights and fundamental freedoms at the national
and international levels.
Article 2
1. Each State has a prime responsibility and duty to protect, promote and implement all
human rights and fundamental freedoms, inter alia, by adopting such steps as may be
necessary to create all conditions necessary in the social, economic, political and other
fields, as well as the legal guarantees required to ensure that all persons under its
jurisdiction, individually and in association with others, are able to enjoy all those rights and
freedoms in practice.
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2. Each State shall adopt such legislative, administrative and other steps as may be
necessary to ensure that the rights and freedoms referred to in the present Declaration are
effectively guaranteed.
Article 3
Domestic law consistent with the Charter of the United Nations and other international
obligations of the State in the field of human rights and fundamental freedoms is the juridical
framework within which human rights and fundamental freedoms should be implemented
and enjoyed and within which all activities referred to in the present Declaration for the
promotion, protection and effective realization of those rights and freedoms should be
conducted.
Article 4
Nothing in the present Declaration shall be construed as impairing or contradicting the
purposes and principles of the Charter of the United Nations or as restricting or derogating
from the provisions of the Universal Declaration of Human Rights, 2 the International
Covenants on Human Rights 3 and other international instruments and commitments
applicable in this field.
Article 5
For the purpose of promoting and protecting human rights and fundamental freedoms,
everyone has the right, individually and in association with others, at the national and
international
levels:
(a) To meet or assemble peacefully;
(b) To form, join and participate in non-governmental organizations, associations or groups;
(c) To communicate with non-governmental or intergovernmental organizations.
Article 6
Everyone has the right, individually and in association with others:
(a) To know, seek, obtain, receive and hold information about all human rights and
fundamental freedoms, including having access to information as to how those rights and
freedoms are given effect in domestic legislative, judicial or administrative systems;
(b) As provided for in human rights and other applicable international instruments, freely to
publish, impart or disseminate to others views, information and knowledge on all human
rights and fundamental freedoms;
(c) To study, discuss, form and hold opinions on the observance, both in law and in practice,
of all human rights and fundamental freedoms and, through these and other appropriate
means, to draw public attention to those matters.
Article 7
Everyone has the right, individually and in association with others, to develop and discuss
new human rights ideas and principles and to advocate their acceptance.
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Article 8
1. Everyone has the right, individually and in association with others, to have effective
access, on a non-discriminatory basis, to participation in the government of his or her
country and in the conduct of public affairs.
2. This includes, inter alia, the right, individually and in association with others, to submit to
governmental bodies and agencies and organizations concerned with public affairs criticism
and proposals for improving their functioning and to draw attention to any aspect of their
work that may hinder or impede the promotion, protection and realization of human rights
and fundamental freedoms.
Article 9
1. In the exercise of human rights and fundamental freedoms, including the promotion and
protection of human rights as referred to in the present Declaration, everyone has the right,
individually and in association with others, to benefit from an effective remedy and to be
protected in the event of the violation of those rights.
2. To this end, everyone whose rights or freedoms are allegedly violated has the right, either
in person or through legally authorized representation, to complain to and have that
complaint promptly reviewed in a public hearing before an independent, impartial and
competent judicial or other authority established by law and to obtain from such an authority
a decision, in accordance with law, providing redress, including any compensation due,
where there has been a violation of that person's rights or freedoms, as well as enforcement
of the eventual decision and award, all without undue delay.
3. To the same end, everyone has the right, individually and in association with others, inter
alia:
(a) To complain about the policies and actions of individual officials and governmental
bodies with regard to violations of human rights and fundamental freedoms, by petition or
other appropriate means, to competent domestic judicial, administrative or legislative
authorities or any other competent authority provided for by the legal system of the State,
which should render their decision on the complaint without undue delay;
(b) To attend public hearings, proceedings and trials so as to form an opinion on their
compliance with national law and applicable international obligations and commitments;
(c) To offer and provide professionally qualified legal assistance or other relevant advice and
assistance in defending human rights and fundamental freedoms.
4. To the same end, and in accordance with applicable international instruments and
procedures, everyone has the right, individually and in association with others, to unhindered
access to and communication with international bodies with general or special competence
to receive and consider communications on matters of human rights and fundamental
freedoms.
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5. The State shall conduct a prompt and impartial investigation or ensure that an inquiry
takes place whenever there is reasonable ground to believe that a violation of human rights
and fundamental freedoms has occurred in any territory under its jurisdiction.
Article 10
No one shall participate, by act or by failure to act where required, in violating human rights
and fundamental freedoms and no one shall be subjected to punishment or adverse action
of any kind for refusing to do so.
Article 11
Everyone has the right, individually and in association with others, to the lawful exercise of
his or her occupation or profession. Everyone who, as a result of his or her profession, can
affect the human dignity, human rights and fundamental freedoms of others should respect
those rights and freedoms and comply with relevant national and international standards of
occupational and professional conduct or ethics.
Article 12
1. Everyone has the right, individually and in association with others, to participate in
peaceful activities against violations of human rights and fundamental freedoms.
2. The State shall take all necessary measures to ensure the protection by the competent
authorities of everyone, individually and in association with others, against any violence,
threats, retaliation, de facto or de jure adverse discrimination, pressure or any other arbitrary
action as a consequence of his or her legitimate exercise of the rights referred to in the
present Declaration.
3. In this connection, everyone is entitled, individually and in association with others, to be
protected effectively under national law in reacting against or opposing, through peaceful
means, activities and acts, including those by omission, attributable to States that result in
violations of human rights and fundamental freedoms, as well as acts of violence perpetrated
by groups or individuals that affect the enjoyment of human rights and fundamental
freedoms.
Article 13
Everyone has the right, individually and in association with others, to solicit, receive and
utilize resources for the express purpose of promoting and protecting human rights and
fundamental freedoms through peaceful means, in accordance with article 3 of the present
Declaration.
Article 14
1. The State has the responsibility to take legislative, judicial, administrative or other
appropriate measures to promote the understanding by all persons under its jurisdiction of
their civil, political, economic, social and cultural rights.
2. Such measures shall include, inter alia:
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(a) The publication and widespread availability of national laws and regulations and of
applicable basic international human rights instruments;
(b) Full and equal access to international documents in the field of human rights, including
the periodic reports by the State to the bodies established by the international human rights
treaties to which it is a party, as well as the summary records of discussions and the official
reports of these bodies.
3. The State shall ensure and support, where appropriate, the creation and development of
further independent national institutions for the promotion and protection of human rights and
fundamental freedoms in all territory under its jurisdiction, whether they be ombudsmen,
human rights commissions or any other form of national institution.
Article 15
The State has the responsibility to promote and facilitate the teaching of human rights and
fundamental freedoms at all levels of education and to ensure that all those responsible for
training lawyers, law enforcement officers, the personnel of the armed forces and public
officials include appropriate elements of human rights teaching in their training programme.
Article 16
Individuals, non-governmental organizations and relevant institutions have an important role
to play in contributing to making the public more aware of questions relating to all human
rights and fundamental freedoms through activities such as education, training and research
in these areas to strengthen further, inter alia, understanding, tolerance, peace and friendly
relations among nations and among all racial and religious groups, bearing in mind the
various backgrounds of the societies and communities in which they carry out their activities.
Article 17
In the exercise of the rights and freedoms referred to in the present Declaration, everyone,
acting individually and in association with others, shall be subject only to such limitations as
are in accordance with applicable international obligations and are determined by law solely
for the purpose of securing due recognition and respect for the rights and freedoms of others
and of meeting the just requirements of morality, public order and the general welfare in a
democratic society.
Article 18
1. Everyone has duties towards and within the community, in which alone the free and full
development of his or her personality is possible.
2. Individuals, groups, institutions and non-governmental organizations have an important
role to play and a responsibility in safeguarding democracy, promoting human rights and
fundamental freedoms and contributing to the promotion and advancement of democratic
societies, institutions and processes.
3. Individuals, groups, institutions and non-governmental organizations also have an
important role and a responsibility in contributing, as appropriate, to the promotion of the
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ight of everyone to a social and international order in which the rights and freedoms set
forth in the Universal Declaration of Human Rights and other human rights instruments can
be fully realized.
Article 19
Nothing in the present Declaration shall be interpreted as implying for any individual, group
or organ of society or any State the right to engage in any activity or to perform any act
aimed at the destruction of the rights and freedoms referred to in the present Declaration.
Article 20
Nothing in the present Declaration shall be interpreted as permitting States to support and
promote activities of individuals, groups of individuals, institutions or non-governmental
organizations contrary to the provisions of the Charter of the United Nations.
B) Guidelines for submitting allegations of violations against human
rights defenders
A. Essential information B. Useful information C. Sample letter to the
SRSG
1. Name of alleged victim/s
Take care to give first and
family names and to spell
names correctly. Victims can
be individuals, groups or
organizations.
2. Status of the victim as a
human rights defender
In what human rights activity
is the victim (person/s,
organization) engaged?
If the victim is an individual,
please provide information
on gender, age, nationality
and profession. If the victim
is an individual or an
organization, please provide
contact details. Contact
details are treated as
confidential.
Where relevant, please also
indicate the city and country
in which the victim (person/s,
organization) conducts this
human rights work.
Ms. Aabb Ddee, a lawyer,
lives in [name of city/town
and country].
Aabb Ddee takes up legal
cases supporting the right to
adequate housing on behalf
of ethnic minorities. She is
also a member of the
National Commission for
Human Rights.
3. Alleged violation/s
committed against the
victim
What happened? Where?
When? What is the current
If an initial violation leads to
other events, please
describe
them
chronologically. E.g. if the
initial concern is that a
human rights defender has
Aabb Ddee received an
anonymous threat to her
safety. On [day/month/year]
Ms. Ddee received a letter at
her office in [name of town].
The letter was addressed to
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situation?
been arrested, details should
be provided. But if he or she
is later detained, other useful
information would include:
the place of detention; the
person’s access to a lawyer;
conditions of detention; the
charges; etc.
her and contained only the
words “Be careful”. In
addition, the following day
Ms. Ddee was followed
closely while driving home
from her office by two men in
a white car.
4. Perpetrators
Give available information on
who allegedly committed the
violation: e.g. two men (in
uniform?); rank, unit or other
identification or title.
5. Action by authorities
Has the matter been
reported to the relevant
authorities? What action has
been taken?
6. Link between the
violation and human rights
work
Why do you think the alleged
violation is a response to the
human rights work of the
victim?
7. Who is submitting this
information? (Confidential)
Give name, contact details
and professional role (if
relevant).
Updates
Please send any updated
information you have as
soon as possible. It is
Witnesses
Were there any witnesses to
the alleged violation? Were
there any other victims?
Action taken by the victim
or by human rights
organizations
Has the alleged violation
been made public? Has this
information been sent to
others?
Previous incidents
If there have been previous
incidents which are relevant,
please give details.
Submissions may be made
by organizations or
individuals.
[two months later] We
learned today [date] that the
police investigation was
closed yesterday. Two men
have been arrested and
detained on charges of
Aabb Ddee was unable to
identify the two men following
her or their vehicle. A friend
accompanying Ms. Ddee in
her car also saw the vehicle
following them.
Aabb Ddee reported both
incidents to the police
[name/address of police
office] the same days they
occurred. The police have
opened an investigation. She
also reported the incidents to
a local newspaper [name].
A year ago [date], another
lawyer representing the
same ethnic group as Aabb
Ddee received a threatening
letter similar to Ms. Ddee’s
and was later [date] killed by
unknown persons.
This letter is submitted by the
National Commission for
Human Rights, with which
Aabb Ddee works.
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especially important to know
if there has been any change
in the situation of the victim.
Updates might be given
where: 1) additional
information becomes known
(e.g. the identity of the
perpetrator of the violation);
or 2) new events occur (e.g.
the victim’s release from
detention).
sending a threatening letter
to Aabb Ddee on [date] and
of following her in their car
when she left work the next
day. The men are due to
appear in court in two weeks.
While pleased with the
arrests, Ms. Ddee believes
that the person who ordered
these acts to be committed
remains at liberty. She has
asked that the police
investigation be continued.
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