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UNODC Training course for trial lawyers International legal instruments, national legislation and casework practice with regard to prevention and suppression.

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Presentation on theme: "UNODC Training course for trial lawyers International legal instruments, national legislation and casework practice with regard to prevention and suppression."— Presentation transcript:

1 UNODC Training course for trial lawyers International legal instruments, national legislation and casework practice with regard to prevention and suppression of torture and other cruel, inhuman or degrading treatment of suspects and accused Tashkent, Uzbekistan Professor Bill Bowring Birkbeck College, University of London Trustee since 1992 of the Redress Trust (working for reparation for torture survivors) Criminalization of torture and ill-treatment; prosecuting suspected torturers Overview of legislation and practice in the United Kingdom

2 A bad start Ireland v UK (18/01/1978) Between January and July a dramatic upsurge in terrorist activity by the IRA. Police statistics record a total of 304 explosions, including 94 for the one month of July. By 9 August, 13 soldiers, 2 policemen and 16 civilians had died since the beginning of the year. In addition, serious and prolonged rioting occurred in both Catholic and Protestant areas. On 9 August 1971 the Northern Ireland Government brought into operation extrajudicial measures of detention and internment of suspected terrorists - 3,276 persons

3 A bad start 2 Five techniques to gain information (a) wall-standing: forcing the detainees to remain for periods of some hours in a "stress position", described by those who underwent it as being "spread eagled against the wall, with their fingers put high above the head against the wall, the legs spread apart and the feet back, causing them to stand on their toes with the weight of the body mainly on the fingers"; (b) hooding: putting a black or navy coloured bag over the detainees heads and, at least initially, keeping it there all the time except during interrogation; (c) subjection to noise: pending their interrogations, holding the detainees in a room where there was a continuous loud and hissing noise; (d) deprivation of sleep: pending their interrogations, depriving the detainees of sleep; (e) deprivation of food and drink: subjecting the detainees to a reduced diet during their stay at the centre and pending interrogations.

4 A bad start 3 Complaint under Article 2 ECHR Commission held that this was torture The Court held: Although the five techniques, as applied in combination, undoubtedly amounted to inhuman and degrading treatment, although their object was the extraction of confessions, the naming of others and/or information and although they were used systematically, they did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood.

5 A bad start 3 Complaint under Article 2 ECHR Commission held that this was torture The Court held: Although the five techniques, as applied in combination, undoubtedly amounted to inhuman and degrading treatment, although their object was the extraction of confessions, the naming of others and/or information and although they were used systematically, they did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood.

6 CAT Reports The UK government submitted its Fifth Periodic State Report to the CAT Committee in August It is anticipated that the examination will take place at the Committees 50th session, due to take place in Geneva in May The committee sets a list of issues to be the focus of the examination at the session prior to it. The 49th session is scheduled for 29 October to 23 November In order to give the committee sufficient time to consider them, it requests that shadow reports and other communications be submitted at least two months prior to the session at which they will be considered.

7 CAT Reports The fourth periodic report of the UK was due on 6 January 2002 and was received on 6 November Conclusions and recommendations of the Committee against Torture, 10 December 2004 Concerns (i) article 15 of the CAT prohibits the use of evidence gained by torture wherever and by whomever obtained; notwithstanding the UKs assurance, the UKs law has been interpreted to exclude the use of evidence extracted by torture only where the State partys officials were complicit; and (ii) article 2 of the CAT provides that no exceptional circumstances whatsoever may be invoked as a justification for torture; the text of Section 134(4) of the CJA 1988 however provides for a defence of lawful authority, justification or excuse to a charge of official intentional infliction of severe pain or suffering, a defence which is not restricted by the Human Rights Act for conduct outside the State party, where the Human Rights Act does not apply; moreover, the text of section 134(5) of the CJA provides for a defence for conduct that is permitted under foreign law, even if unlawful under the UKs law;

8 CAT Reports Concerns The fourth periodic report of the UK was due on 6 January 2002 and was received on 6 November Conclusions and recommendations of the Committee against Torture, 10 December 2004 Concerns (i) article 15 of the CAT prohibits the use of evidence gained by torture wherever and by whomever obtained; notwithstanding the UKs assurance, the UKs law has been interpreted to exclude the use of evidence extracted by torture only where the State partys officials were complicit; and (ii) article 2 of the CAT provides that no exceptional circumstances whatsoever may be invoked as a justification for torture; the text of Section 134(4) of the CJA 1988 however provides for a defence of lawful authority, justification or excuse to a charge of official intentional infliction of severe pain or suffering, a defence which is not restricted by the Human Rights Act for conduct outside the State party, where the Human Rights Act does not apply; moreover, the text of section 134(5) of the CJA provides for a defence for conduct that is permitted under foreign law, even if unlawful under the UKs law;

9 CAT Reports Concerns 2 The UKs limited acceptance of the applicability of the CAT to the actions of its forces abroad, in particular its explanation that those parts of the Convention which are applicable only in respect of territory under the jurisdiction of a State party cannot be applicable in relation to actions of the UK in Afghanistan and Iraq; the Committee observes that the CAT protections extend to all territories under the jurisdiction of a State party and considers that this principle includes all areas under the de facto effective control of the UKs authorities; the UKs reported use of diplomatic assurances in the refoulement context in circumstances where its minimum standards for such assurances, including effective post return monitoring arrangements and appropriate due process guarantees followed, are not wholly clear and thus cannot be assessed for compatibility with article 3 of the Convention; the UKs resort to potentially indefinite detention under the Anti-terrorism, Crime and Security Act 2001 of foreign nationals suspected of involvement in international terrorism and the strict regime applied in Belmarsh prison;

10 CAT Reports Concerns 3 the investigations carried out by the UK into a number of deaths by lethal force arising between the entry into force of the CAT in 1988 and the Human Rights Act in 2000 which have failed to fully meet its international obligations; reports of unsatisfactory conditions in the UKs detention facilities including substantial numbers of deaths in custody, inter-prisoner violence, overcrowding and continued use of slopping out sanitation facilities, reports of unacceptable conditions for female detainees in the Hydebank Wood prison, including a lack of gender sensitive facilities, policies, guarding and medical aid, with male guards alleged to constitute 80% of guarding staff and incidents of inappropriate threats and incidents affecting female detainees;

11 CPT Reports Concerns Report to the Government of the United Kingdom on the visit to the United Kingdom carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 18 November to 1 December 2008 the CPT is concerned to note that little or no action has been taken in respect of certain recommendations made in previous reports, in particular as regards the conditions of detention and the legal safeguards against ill-treatment of persons held under the Terrorism Act 2000, and overcrowding in prisons. The CPTs delegation heard no allegations of physical ill-treatment of prisoners by staff at any of the three prisons visited.

12 CPT Reports Concerns 2 The delegation which carried out the 2008 visit found that the vast majority of prisoners at Manchester, Wandsworth and Woodhill Prisons were doubled up in cells of 8.5m² or smaller. The cells were equipped with a bunk bed, a table, two stools and a shelving unit, and nearly all cells possessed a television and a kettle. All cells had access to natural light and were adequately ventilated and heated. However, there was no screening of the toilet and basin, placed between the bunk bed and the outer wall, in most of the cells visited in the three prisons. From the information gathered during the visit, prisoners spend lengthy periods of time locked in their cells.

13 Private prisons Prison Reform Trust – March 2011 The decision by the Minister of Justice Kenneth Clarke to award the security firm G4S the contract to run the 1,400-place Birmingham prison, announced in the House of Commons, has reignited the debate about the role of the private sector in UK prisons. The UK already has the most privatised prison system in Europe. In England and Wales, nearly 10,000 prisoners (11.6% of the total prisoner population) are held in private prisons. This is a higher proportion than in the US, where the figure is around 9%. The privatisation of HMP Birmingham and the new private Featherstone 2 will take the total number of private prisons in England and Wales from 11 to 13, holding up to 14% of the total prison population. Private prison contracts in England and Wales are shared between just three companies: Serco, Sodexo and G4S. Overall the costs of private prisons per place are higher than public prisons for most types of establishment. Despite this, the average ratio of prison staff to prisoners is usually lower in private prisons, and staff generally receive a lower level of basic pay than their public sector colleagues.

14 The only UK conviction for torture On 18 July 2005 the Afghan warlord Faryadi Sarwar Zardad (41) was found guilty in the London Central Criminal Court (Old Bailey) of conspiring to torture and take hostages in Afghanistan in the 1990s. The following day he was sentenced to twenty years imprisonment. His appeal was denied on 7 Feb 2007 Judgment dismissed the defence submission that Zardad was not a public official or a person acting in an official capacity" in terms of Section 134 (1) of the Criminal Justice Act Although Zardad was not a de jure public official, he was to be treated as a public official on a de facto basis. Judge examined a considerable amount of international material to reach his decision, namely the UN CAT decisions in Elmi v Australia and HMHI v Australia, as well as the ITCY case of Furundzija and the USA case of Kadic v Karadzic.

15 Inquiry into UK role in rendition and torture 6 July announcement by Prime Minister David Cameron of an inquiry into allegations of UK involvement in the mistreatment of detainees held abroad Redress and other NGOs criticise as too weak 18 January inquiry into the UK's alleged role in the torture and rendition of detainees after the 9/11 attacks, already boycotted by most human rights groups, abandoned by the government. Shami Chakrabarti, director of Liberty, said: "We welcome the sensible decision to end the embarrassment of a so-called inquiry in which neither torture victims nor human rights campaigners had faith."

16 Redress comment on draft UK Fifth Report Para 12 of the draft report states the UK must be prepared at all times to judge itself against the highest international standards and to work hard to embed respect for international law and respect for human rights; Why has the UK made no declaration under Art 22 of CAT to allow complaints? What are the police and Crown Prosecution Service doing to bring more prosecutions, and why there has only been one UK prosecution in the more than twenty years since torture was made a crime in the UK? Why does the UK continue to consider that the UNCAT does not apply extra-territorially; this is contradictory in both law and principle, when the UKs highest court found in Al Skeini that article 3 of the ECHR does have extra-territorial application to detainees held in custody by UK personnel anywhere abroad.


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