A/73/207
appalling conditions, exposes irregular migrants to substant ial risks of torture or illtreatment (A/HRC/37/50).
42. With regard to State authorities operating on the “front lines”, such as law
enforcement and security personnel, prison staff and immigration officials, misguided
institutional cultures are often conducive to the spread of torture and ill -treatment. In
far too many national law enforcement systems, torture and ill -treatment are not
effectively discouraged, confessions continue to be favoured and investiga tive
outcomes are rewarded irrespective of the method used to achieve them. Political
pressure to deliver results, appraisal systems focused on the number of crimes
“solved” or convictions secured, combined with a lack of resources for forensic
support and of training in modern criminal investigation techniques, often lead to
coercive interrogation being seen as a “shortcut” to delivering the expected results,
despite substantial evidence of its ineffective and counterproductive nature
(A/71/298, paras. 10–12 and 16–22). Conversely, a practice-oriented, systematic
integration of the prohibition of torture and ill-treatment within policing culture not
only significantly decreases the risk of excessive use of force a nd other forms of
torture and ill-treatment, but also increases the population’s trust and cooperation,
making policing more effective and promoting the rule of law.
C.
Direct challenges to the prohibition
1.
Misinterpretation
43. Certain circumstances may give rise to genuine uncertainty regarding the
precise scope of the prohibition of torture and ill-treatment. In case of uncertainty as
to the permissibility of a particular act, omission or situation, the prohibition must be
interpreted in good faith and in the light of its object and purpose as reflected, inter
alia, in international jurisprudence and the standards and guidelines developed for its
implementation. If doubt persists, States should always err on the side of caution,
given that the act, omission or situation in question can be permissible only once its
qualification as torture or ill-treatment has been affirmatively excluded. Particular
interpretive caution is required in circumstances involving persons with specific
vulnerabilities, which may increase the likelihood of the prohibition being breached.
44. Under legislation in some States, corporal punishment is still provided for and
domestic violence and chastisement, in particular against women and children, are
tolerated. That must be regarded as incompatible with a contemporary understanding
of human dignity and, therefore, cannot be justified as “lawful sanctions” within the
meaning of article 1 of the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment. 15 Although the death penalty is not formally
prohibited under international law, the wording of article 6 of the International
Covenant on Civil and Political Rights and the adoption of its Second Optional
Protocol clearly indicate an international commitment to work towards its abolition.
It is the considered view of the Special Rapporteur that the circumstances
accompanying the practice of the death penalty, including the “death row
phenomenon”, almost invariably inflict a degree of pain and suffering on convicts and
their relatives, which cannot be reconciled with the prohibition of torture and ill treatment and the underlying principle of human dignity (see A/67/279, paras. 42–51
and 78).
__________________
15
12/23
See also Human Rights Committee, general comment No. 20 (1992) on article 7: prohibition of
torture or other cruel, inhuman or degrading treatment or punishment (para. 5), a nd ICRC,
Customary International Humanitarian Law, vol. I (Cambridge, United Kingdom, Cambridge
University Press, 2009), rule 91.
18-12051
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