E/CN.4/1991/17
page 90
287. The lesson to be learned is that in the end torture does not pay; that
ultimately the tool of torture will turn itself against those who use it; that
it is not only illogical but also futile to try to restore or maintain law and
order by trampling the law and disturbing order. But as long as this lesson
is not yet learned, there is every reason to step up the campaign against
torture. The members of the international community should increasingly exert
pressure of various kinds upon Governments which allow torture to be used as a
political tool. In his first report the Special Rapporteur called torture the
plague of the second half of the twentieth century. Precious little time is
left for preventing this plague from entering into the twenty-first century.
288. The Special Rapporteur's mandate is aptly called "Questions relevant to
torture". Thereby it is implicitly recognized that torture does not start in
the interrogation chamber but that the decisive moment is the moment when a
person is deprived of his liberty. As of that moment he finds himself in a
situation where he eventually may be exposed to torture. It is by no means a
coincidence that the International Covenant on Civil and Political Rights
which, in its article 7 forbids torture and other cruel, inhuman or degrading
treatment or punishment, states, in its article 10, paragraph 1, that all
persons deprived of their liberty shall be treated with humanity and with
respect for the inherent dignity of the human person. Torture is the absolute
denial of the inherent dignity of the human person. Violation of article 10,
paragraph 1, therefore, may lead to violation of article 7 whereas compliance
with article 10, paragraph 1, is the best preventive measure against the
violation of article 7.
289. It is, therefore, no matter for suprise that the prohibition of torture
is an integral part of a number of documents dealing with the treatment of
detained persons in general, such as the Body of Principles for the Protection
of all Persons under Any Form of Detention or Imprisonment. In none of these
documents do we find an explicit prohibition of incommunicado detention
although there are provisions which limit the possibilities of such detention,
like the prompt hearing by a judicial or other authority and the prompt
notification of a person's arrest to his relatives.
290. Apparently, there is some understanding of the view that for security
reasons a person must be held incommunicado for a certain period in order to
collect information and evidence which under no circumstances should be
allowed to come to the knowledge of his accomplices. Should he have the right
to see his counsel or his relatives, vital information might be leaked to the
outside world. Such understanding has until now prevented the outright
prohibition of incommunicado detention.
291. It should be realized, however, that torture is most frequently practised
during incommunicado detention. To that extent, incommunicado detention might
be called the torturer's bosom friend. It seems, therefore, worthwhile to see
whether there are no other means by which such security considerations might
be properly served. Governments sometimes have overriding objections against
the detainee seeing his own lawyer since it is suspected that he belongs to
the same faction. In such cases use might be made of lawyers placed on a
panel by an independent professional organization, like the national Bar
Association. Similarly, for as long as a person is not allowed to see his
legal counsel or his relatives, a daily medical examination by an independent
doctor to be chosen from a list drawn up by a professional medical
organization might be prescribed. Such measures would divest the detention of
its incommunicado character.
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