E/CN.4/2006/6
page 9
23.
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.
24.
The Special Rapporteur observes that in recent years much concern has been raised by
Governments with respect to the above-mentioned terms of reference, particularly with regard to
unannounced visits to places of detention. While in some cases he may indicate to the
authorities in advance which facilities he intends to visit, access to all places implies that he will
also conduct visits with little or no prior notice. Unannounced visits aim to ensure, to the
greatest extent possible, that the Special Rapporteur can formulate a distortion-free picture of the
conditions in a facility. Were he to announce in advance, in every instance, which facilities he
wished to see and whom he wished to meet, there might be a risk that existing circumstances
could be concealed or changed, or persons might be moved, threatened or prevented from
meeting with him. This is an unfortunate reality that the Special Rapporteur faces. In fact,
such incidents have even occurred where he has been delayed in entering a facility by as little
as 30 minutes.
25.
On occasion, in order to deny the Special Rapporteur the unimpeded access described
above, it has been argued that national legislation restricts access to facilities except for a select
number of enumerated individuals. However, it must be pointed out that an official visit of the
United Nations Special Rapporteur, undertaken at the express invitation of a Government, is
clearly an exceptional event. Therefore, one would expect that the Government would
demonstrate its good faith and cooperation by facilitating the work of the Special Rapporteur to
the fullest extent possible. In practical terms, this has been achieved by providing the Special
Rapporteur with letters of authorization signed by the relevant ministries, as was done recently in
Georgia, Mongolia and Nepal. In China, such letters of authorization could not be issued, which
meant that officials of the Ministry for Foreign Affairs accompanied the Special Rapporteur
throughout his mission in order to assure his unimpeded access to all places of detention.
26.
In the view of the Special Rapporteur, these terms of reference are fundamental,
necessary and common sense considerations. Moreover, by their nature, “common sense”
methods for fact-finding cannot be subject to negotiation or selective approval by States. This
was one of the reasons for the cancellation of the visit to Guantánamo Bay. Any suggestion to
the contrary can only be considered as an attempt to compromise later findings. Likewise,
subsequent violations of these conditions would seriously call into question the intentions behind
inviting the Special Rapporteur.