A/68/295
Committee general comment No. 18, para. 7), as well as labelling on grounds of
psychological profile or criminal past.
29. Similarly, in line with general comment No. 2 of the Committee against
Torture, the Rules apply irrespective of whether the detention facilities are run by
State or private companies (paras. 15 and 17). Authorities should ensure that the
Rules and the principles stipulated therein are observed in all institutions and
establishments within their jurisdiction where persons are deprived of liberty. The
Rules should ensure that, in cases where certain services are outsourced, the State
remains responsible for the adequacy of those services.
30. Furthermore, the provisions in the Rules governing the transfer of detainees
from one authority to another should be strengthened. The duties of the State should
be extended to the following circumstances, among others: the transfer of prisoners
from one establishment to another; judicial proceedings; and hospitals outside the
confines of an institution of detention. Even when the administration of a facility is
not in charge of ordering a transfer, it is nevertheless acting in an official capacity on
account of its responsibility for carrying out the State’s obligation to prevent torture
and ill-treatment, and bears responsibility for permitting or participating in the
transfer of a person to the custody or control of an individual or institution known to
have engaged in torture or ill-treatment, or for not implementing adequate safeguards,
in contravention of the State’s obligation to take effective measures to prevent torture
or other ill-treatment (Committee against Torture general comment No. 2, para. 19).
31. Thus, regardless of which authority is competent to authorize and/or execute
transfers, the authority releasing the detainee, as guarantor of the right to life and
humane treatment of the persons under its custody, must act with due diligence and
objectivity in assessing potential risk factors and the feasibility of the transfer, and
must inform the judge in charge, prior to carrying out the transfer, to give him or her
the opportunity to overturn said transfer. The Rules should allow for available,
suitable and effective judicial remedies to challenge transfers when it is believed
that they infringe on the human rights of inmates. 1
32. The Special Rapporteur fully endorses the proposal by the Expert Group to
include a new preamble that would include a list of the fundamental principles
contained in already adopted treaties and guidelines regarding treatment in detention
(see Rule 3 and E/CN.15/2012/CRP.2, sect. 4). Some proposed preambles (for
example, that proposed in UNODC/CCPCJ/EG.6/2012/NGO/1), however, refer to
instruments that set out standards that fall short of those recognized in subsequent
instruments; these earlier instruments should not, therefore, be cited in the Rules.
For instance, the standards set out in the Principles for the Protection of Persons
with Mental Illness and for the Improvement of Mental Health Care (1991), have, in
various important respects, been superseded by the higher standards set out in the
Convention on the Rights of Persons with Disabilities (see A/HRC/22/53, para. 58).
33. It is crucial to recognize explicitly the absolute prohibition of torture and other
cruel, inhuman or degrading treatment or punishment in all circumstances. Such an
explicit recognition should be included both in the preamble and, through a revision,
in Rule 6, dealing with respect for inmates’ inherent dignity and value as human
__________________
1
13-42285
Inter-American Commission on Human Rights, Report on the Human Rights of Persons
Deprived of Liberty in the Americas (2011). Available from www.oas.org/en/iachr/pdl/docs/
pdf/PPL2011eng.pdf.
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