E/CN.A/1990/17
page 83
law and that such acts should be made subject to appropriate sanctions.
Highly relevant for the prevention of torture is paragraph 3, which give6 any
person who has grounds to believe that a violation of the principles has
occurred, the right to report the matter to the authorities in order to have
it investigated.
270. Compliance with the Body of Principles, as urged by the General Assembly,
would make torture during detention or imprisonment virtually impossible.
This will only be the case., however, if the international community responds
to requests by Governments for assistance in the field of training and
provision of modern equipment which offers better guarantees for the physical
and mental integrity of detained persons. Respect for human rights does not
come by itself; nor is it merely dependent upon the political will of the
authorities, indispensable though this political will may be. Respect for
human rights often also calls for costly investments. The Voluntary Fund for
Advisory Services and Technical Assistance in the Field of Human Rights is of
vital importance in this respect and States should enable it to carry out its
task by providing it with the necessary financial means.
271. In many allegations the practising of torture is ascribed to members of
the security forces. In most countries it is a long-established rule that
people belonging to the military who are suspected of having committted an
offence have to stand trial before a military tribunal. This rule may be
explained by the fact that from time immemorial the military have had their
own esprit de corpsf which is still appropriate in the case of offences that
have a typically military character, such as desertion or mutiny. The rule,
however, makes no sense at all in cases where members of the security forces
have seriously violated a civilian's basic human rights. Such an act is an
offence against the public civil order and, consequently, should be tried by a
civilian court. Torture is forbidden under all circumstances and this
prohibition applies to all officials, whether military or civilian. It
therefore cannot be seen as having any relationship to the specific functions
of the military. As the civilian courts are responsible for the
administration of justice in general with a view to protecting the civil
public order, the civilian courts should be competent to try all offences
against the civil public order, whoever may have committed them.
272. In the light of the foregoing, the Special Rapporteur wishes to make the
following recommendations, most of which will follow the general pattern of
the Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment:
(a) Since a great number of the allegations received by the Special
Rapporteur referred to torture practised during incommunicado detention,
incommunicado detention should be prohibited;
(b) Other allegations referred to torture practised during illegal
detention before a detainee was presented to a judge. Those who act contrary
to the rules prescribed for a lawful arrest should be subjected to appropriate
sanctions;
(c) Any person who is arrested should be given access to legal counsel
no later than Ik hours after his arrest; his relatives should be informed
promptly of his arrest and the place where he is detained;
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