A/61/259 I. Introduction 1. The present report is the eighth submitted to the General Assembly by the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment. It is submitted pursuant to General Assembly resolution 60/148 (para. 28) and Commission resolution 2005/39 (para. 29). It is the second report submitted by the present mandate holder, Manfred Nowak. This report includes issues of special concern to the Special Rapporteur, in particular overall trends and developments with respect to his mandate. 2. The Special Rapporteur draws attention to document E/CN.4/2006/6, his main report to the Commission on Human Rights. In that report the Special Rapporteur examined the implications of the terms of reference for fact-finding missions, specifically with respect to visiting places of detention. In the view of the Special Rapporteur, they are fundamental, common-sense considerations that are essential to ensure an objective, impartial and independent assessment of torture and illtreatment during country visits. Attention was also drawn to the importance of maintaining the focus on and remaining vigilant against practices such as the use of diplomatic assurances. The Special Rapporteur reiterates that they are not legally binding, undermine existing obligations of States to prohibit torture and are ineffective and unreliable in ensuring the protection of returned persons, and therefore shall not be resorted to by States. In the final part of the report, he examined the distinction between torture and cruel, inhuman or degrading treatment or punishment. The proportionality principle is a precondition for assessing the scope of application of the prohibition of cruel, inhuman or degrading treatment or punishment — except for the situation where one person is under the total control of another (i.e. where a person is rendered powerless). In such situations, and in particular in situations of interrogation, no proportionality test may be applied and the prohibition of cruel, inhuman or degrading treatment or punishment is equally as absolute as the prohibition of torture. 3. Document E/CN.4/2006/6/Add.1 covered the period 1 December 2004 to 15 December 2005 and contained allegations of individual cases of torture or general references to the phenomenon of torture, urgent appeals on behalf of individuals who might be at risk of torture or other forms of ill-treatment, as well as responses by Governments. The Special Rapporteur continues to observe that the majority of communications are not responded to by Governments. If responses are received most are characterized by significant delays, denials, related to criminal allegations against the individuals without addressing the allegations of torture or ill-treatment, indicated that investigations into the allegations were under way but rarely provided information on outcomes, including criminal proceedings against perpetrators and compensation paid to victims or their families. The Special Rapporteur reiterates that cooperation by States to clarify allegations constitutes an essential obligation without which he is not in a position to carry out his mandate properly. 4. Document E/CN.4/2006/6/Add.2 contained information on the state of followup to the recommendations resulting from previous country visits. The Special Rapporteur is grateful for the information provided by the Governments of Azerbaijan, Brazil, Cameroon, Chile, Mexico, Romania, the Russian Federation, Spain, Turkey, Uzbekistan and Venezuela. He regrets that the Governments of 4 06-46815