The document discusses the role and responsibilities of the UN Special Rapporteur on Torture. It provides definitions of torture and outlines international legal instruments that prohibit torture. It discusses the Special Rapporteur's mandate to investigate allegations of torture and conduct fact-finding visits to detention sites with unimpeded access. The document also outlines best practices for detention monitoring visits, including conducting private interviews with detainees in a manner that protects victims and maintains confidentiality.

1. UN Special Rapporteur on Torture
Manfred Nowak
Professor of International Human Rights Law at
the University of Vienna
Director, Ludwig Boltzmann Institute of Human
Rights (Vienna)
UN Special Rapporteur on Torture
Belgrade, 4 September 2009
Prevention and Prohibition of
Torture and Other Cruel, Inhuman
or Degrading Treatment or
Punishment

2. UN Special Rapporteur on Torture
International Standards

3. UN Special Rapporteur on Torture
1. DEFINITION OF TORTURE (ART. 1 CAT)
a) Causing of severe physical and/or mental pain or suffering
b) State responsibility
c) Intention; applied to achieve a certain purpose
(confession, information, intimidation, discrimination…)
d) Powerlessness, defenselessness of the victim, which is
completely in the torturer’s power (especially during detention)
→ direct attack on the victim’s dignity and personal integrity
→ specific form of violence
→ examples:
„Palestinian Hanging”
Abu-Ghraib (prisoner at dog leash)

4. UN Special Rapporteur on Torture
2. DEFINITION OF CRUEL, INHUMMAN AND DEGRADING
TREATMENT OR PUNISHMENT (CIDT: ARTICLE 16 CAT)
a) Intensity of Pain Doctrine (ECtHR)
b) Purpose Doctrine
c) Powerlessness Doctrine
d) CIDT also outside detention: excessive use of police violence, principle of proportionality
e) Corporal and capital punishment
f) Inhuman and degrading conditions of detention
g) Prohibition of refoulement

5. UN Special Rapporteur on Torture
3. DEVELOPMENT OF INTERNATIONAL LEGAL INSTRUMENTS
AGAINST TORTURE
After World War II:
a) Article 5 UDHR 1948
a) Article 3 ECHR 1950
a) Article 7 CCPR 1966
a) Article 5 ACHR 1969
1970s:
Systematic practice of torture in many parts of the world, in particular during the military
dictatorships in Latin America.
Campaign against Torture by Amnesty International and other NGOs

6. UN Special Rapporteur on Torture
4. PROHIBITION OF TORTURE AS AN ABSOLUTE AND
NON-DEROGABLE RIGHT IN INTERNATIONAL LAW
a) Absolute vs. Relative Rights
e.g. freedom of expression, right to life, prohibition of torture and slavery;
b) Non-derogable vs. Other Rights
e.g. personal liberty, right to life (Art. 15 ECHR), prohibition of torture,
prohibition of retro-activity of penal laws;
c) Torture vs. Cruel, Inhuman or Degrading Treatment (CIDT)
“relativity” of CIDT (principle of proportionality)
d) Reasons for the special Protection of the
Prohibition of Torture as Ius Cogens
Middle Ages → gradual elimination from criminal law
National Socialism → absolute prohibition
Chile → special protection mechanisms (criminal law, prevention, victim protection, fact
finding)
Former Yugoslavia → international criminal tribunals, systematic torture as a crime
against humanity;

7. UN Special Rapporteur on Torture
5. FIGHTING IMPUNITY OF PERPETRATORS
a) Declaration against Torture 1975
b) Convention against Torture (CAT) 1984
Article 4: Obligation to criminalize torture
Article 5-9: Territorial, personal and universal jurisdiction
c) Rome Statute of an International Criminal Court 1998
Systematic or widespread practice of torture as crime
against humanity

8. UN Special Rapporteur on Torture
6. PREVENTION OF TORTURE
a) Convention against Torture 1984
Article 2: comprehensive measures
Article 3: non-refoulement
Article 10: training of law enforcement personnel
Article 11: modernization of interrogation techniques
Article 15: non-applicability of information extracted by torture
b) Preventive visits to places of detention
ICRC
Jean-Jacques Gautier
Draft Costa Rica Protocol 1980
European Convention for the Prevention of Torture 1987
OPCAT 2002

9. UN Special Rapporteur on Torture
7. RIGHT OF VICTIMS TO A REMEDY AND REPARATION
Convention against Torture 1984
Article 13: independent and impartial investigation of all complaints by
victims of torture and CIDT: “police-police”
→ disciplinary, criminal and civil remedies
Article 14: right to adequate reparation:
rehabilitation, compensation etc.
→ universal civil jurisdiction

10. UN Special Rapporteur on Torture
Torture in Prisons
and other Places of
Detention

11. UN Special Rapporteur on Torture
1. TORTURE AND CIDT IN POLICE CUSTODY
a) Reasons: Extraction of confessions and information; intimidation
b) Remedies:
 keep police custody as short as possible (48 hours)
 quick access of family members, doctors, lawyers
 monitoring of interrogations (presence of lawyers, video taping etc)
 right to habeas corpus
 medical examination (forensic experts)

12. UN Special Rapporteur on Torture
2. TORTURE AND CIDT IN PRE-TRIAL DETENTION
a) Reasons: Extraction of confessions and information, preparation for prison life (“initiation
rites“, “welcome party“); disciplinary punishment; solitary confinement for investigative
purposes; corruption
b) Remedies:
 separation from police (Ministry of Interior)
 separation of pre-trial detainees from convicted prisoners
 pre-trial detention as exception, not as rule (Article 9/3 CCPR)
 non-custodial measures (release on bail etc.)
 keep pre-trial detention as short as possible (6 months)
 right to habeas corpus
 effective functioning of administration of criminal justice

13. UN Special Rapporteur on Torture
3. TORTURE AND CIDT IN PRISONS
a) Reasons:  Disciplinary measures (corporal punishment, solitary confinement)
 Punitive penal policies (strict or special regimes)
 Inter-prisoner violence and hierarchies
 Discrimination of vulnerable groups (children, elderly, persons with
disabilities, gays, lesbians and transgender people, women)
b) Remedies:
 Non-punitive penal policies (Article 10 CCPR: rehabilitation and
re-socialisation of offenders; “principle of normalization”)
 Prohibition of corporal punishment
 Administration of prisons as a responsible governmental function: non-
delegation to prisoners (“bureau internes”) or private companies
 Separation of women from men, of minors from adults
 Pro-active measures for protection of vulnerable and discriminated
groups

14. Detention Monitoring at the
International Level
UN Special Rapporteur on Torture

15. UN Special Rapporteur on Torture
1. TERMS OF REFERENCE OF SPECIAL PROCEDURES IN GENERAL
During fact-finding missions, special rapporteurs or representatives of the Commission on
Human Rights, as well as United Nations staff accompanying them, should be given the
following guarantees and facilities by the Government that invited them to visit its country:
(a) Freedom of movement in the whole country, including facilitation of transport, in
particular to restricted areas;
(b) Freedom of inquiry, in particular as regards:
(c) Access to all prisons, detention centres and places of interrogation;
(d) Contacts with central and local authorities of all branches of government;
(e) Contacts with representatives of non-governmental organizations, other private
institutions and the media;
(f) Confidential and unsupervised contact with witnesses and other private persons,
including persons deprived of their liberty, considered necessary to fulfil the mandate of
the special rapporteur; and
(g) Full access to all documentary material relevant to the mandate;

16. UN Special Rapporteur on Torture
1. TERMS OF REFERENCE OF SPECIAL PROCEDURES (cont.)
(h) Assurance by the Government that no persons, official or private individuals who have
been in contact with the special rapporteur/representative in relation to the mandate
will for this reason suffer threats, harassment or punishment or be subjected to judicial
proceedings;
(i) Appropriate security arrangements without, however, restricting the freedom of
movement and inquiry referred to above;
(j) Extension of the same guarantees and facilities mentioned above to the appropriate
United Nations staff who will assist the special rapporteur/representative before, during
and after the visit.

17. UN Special Rapporteur on Torture
2. TERMS OF REFERENCE OF THE SPECIAL RAPPORTEUR
ON TORTURE
“For the Special Rapporteur on the question of torture, it is axiomatic that freedom
of inquiry in places of detention implies:
• unimpeded access, with or without prior notice, to any place where persons
may be deprived of their liberty (e.g. police lock-up, pretrial, prison,juvenile,
administrative, psychiatric or other facilities, as well as detention facilities within
military installations);
• not being subject to arbitrary time limits for carrying out his work (e.g. visiting
hours, working hours of daytime prison staff, etc.);
• free movement within the facility and access to any room in order to gather
information, including by use of electronic means, such as photography;
• having access to any detainee or staff, and the possibility of conducting
confidential and private interviews, unsupervised by government officials, in
places either chosen by the Special Rapporteur or in cooperation with the
detainee;
• being assisted by independent medical specialists who are qualified to
document and assess injuries, in accordance with the Istanbul Protocol, as well as
being assisted by independent interpreters; and being provided with copies of
relevant information and documentation as requested.“ (E/CN.4/6/2006)

18. UN Special Rapporteur on Torture
3. IMPORTANCE OF UNANNOUNCED VISITS
• Purpose of prevention
• Preparation of prisons and detainees
• Replacing paradigm of opacity by one of transparency
• Letters of authorization and hotline with authorities

19. UN Special Rapporteur on Torture
4. COMPOSITION OF THE TEAM
• Human Rights Experts
• Interpreters
• Forensic Experts
• Security Staff
• Gender balance

20. UN Special Rapporteur on TortureUN Special Rapporteur on Torture
5. SCHEDULE OF VISITS TO PLACES OF DETENTION
• Courtesy v. Effectiveness
• Prison register and documents
• Disciplinary Cells
• Selection of detainees to be interviewed
• Protection of victims and witnesses

21. UN Special Rapporteur on Torture
6. PRIVATE INTERVIEWS WITH DETAINEES
• Risks for detainees
• Risks for interviewers
• Informed consent
• Selection of place for interview
• Conduct of interview
• Confidentiality v. reporting
• Follow-up
• Protection of interview partners

22. UN Special Rapporteur on Torture

23. UN Special Rapporteur on Torture

24. UN Special Rapporteur on Torture

25. UN Special Rapporteur on Torture
Thank you for your attention!
OHCHR
http://www.ohchr.org/english/issues/torture/rapporteur/
Ludwig Boltzmann Institute of Human Rights
http://www.univie.ac.at/bim