Excerpt on Torture at Human Rights Foundation

I excerpted the following from:

The prohibition of torture is absolute and must be enforced at all times and in all circumstances
Presentation by Thomas Hammarberg, Council of Europe Commissioner for Human Rights
(Human Rights Foundation of Turkey - 20th Anniversary Conference)

Torture and cruel, inhuman or degrading treatment or punishment are prohibited under international law. The prohibition is absolute and no exceptions are allowed, ever. Torture was made unthinkable after the ban had been enshrined in the United Nations human rights treaties and the humanitarian Geneva Conventions.

Article 3 of the European Convention on Human Rights outlaws torture and other forms of ill-treatment, one of the most fundamental values of democratic society, as the Strasbourg Court has stressed. It is the sole Article of the Convention that does not leave states any space for derogations, be it for public order or in the interest of society, or even for counter-terrorism actions. Under Article 3, the identity of the victim is irrelevant: It does not matter if the victim is a notorious criminal or a terrorist.

In a recent judgment in the case of Gäfgen v. Germany, where the security forces threatened the applicant, suspected of a child’s abduction, with being subjected to intolerable pain in order to make him confess the whereabouts of the child in issue, the European Court of Human Rights once again stressed the following: “The prohibition on ill-treatment of a person applies irrespective of the conduct of the victim or the motivation of the authorities. Torture, inhuman or degrading treatment cannot be inflicted even in circumstances where the life of an individual is at risk. No derogation is allowed even in the event of a public emergency threatening the life of the nation. Article 3, which has been framed in unambiguous terms, recognises that every human being has an absolute, inalienable right not to be subjected to torture or to inhuman or degrading treatment under any circumstances, even the most difficult”.1

*

However, despite this clear and absolute ban in international and national laws, detainees or foreign nationals subject to forced returns are exposed or subjected to torture and other forms of ill-treatment in many European states. A solid underpinning of this legal requirement is now needed more than ever.

Governments must make clear that nothing but zero tolerance towards such practices is acceptable.

Each government should put in place an effective system for preventing all forms of ill-treatment. Police and security staff must be instructed and systematically trained in lawful methods of interrogations. Capacity for disciplined, lawful behaviour must be a key factor when recruiting law enforcement personnel; unsuitable officers have to be removed.

Action aimed at preventing and eliminating ill-treatment should be guided by the human rights norm that any person arrested must have prompt access to a lawyer and impartial medical examination upon arrival and release. As the Strasbourg Court has held in a number of judgments against Turkey in which it found a violation of Article 3 of the Convention, the medical examination of persons in police custody, the right of access to a lawyer and the right to inform a third party of the detention constitute the most essential safeguards against ill-treatment.2

It should be noted that ill-treatment of persons deprived of their liberty is not confined to police custody or to prisons. Governments should therefore put in place an effective system of continued and independent monitoring of all places where people are held involuntarily, such as psychiatric hospitals and detention centres for refugees and immigrants.