E/CN.4/1991/17
page 91
292. It is a well-known fact that the prosecution of torturers is often
virtually impossible because during the interrogation session the detainee was
blindfolded or hooded and is consequently not able to identify the culprits.
Implementation of principles 12 and 23 of the Body of Principles, providing
for the recording of all relevant facts at the time of arrest (principle 12)
and during an interrogation (principle 23), including the identity of the
persons who assisted at the interrogation could effectively terminate this
ignominious practice of blindfolding or hooding which - apart from being
highly intimidating - is in itself a violation of the duty to respect a
detained person's inherent dignity.
293. Another effective measure to prevent torture is to hold the person in
charge of a place of detention responsible, if it is proven beyond reasonable
doubt that a detainee has been tortured in that particular detention place,
even if the identity of the torturers themselves cannot be established. Every
person in charge of a detention place should take adequate measures to prevent
any occurrence of torture. If torture is nevertheless practised, he obviously
has failed in meeting his own responsibility. The Special Rapporteur has been
informed that in some countries the taking of disciplinary measures (such as
demotion) have been found to be highly effective tools in combating torture.
294. Administrative detention has often been mentioned as a form of detention
which may easily lead to torture practices, since many of the guarantees
inherent to a criminal procedure are lacking. This is particularly so if
administrative detention is not subject to judicial control or cannot be
appealed against. In many countries deprivation of liberty is only possible
when a person is charged with or convicted for a criminal offence;
administrative detention, consequently, is not allowed. In other countries
deprivation of liberty is lawful if a person is considered a risk to society
or to certain interests of the State without him having committed a criminal
offence. In this context it deserves mentioning that the Body of Principles
is applicable to all forms of detention or imprisonment. Persons under
administrative detention are, therefore, entitled to the same degree of
protection as persons who are suspected of or are found guilty of having
committed criminal offences.
295. The idea of the institution of a system of periodic visits by independent
experts to places of detention or imprisonment was proposed to the Commission
a long time ago. On 6 March 1980, the Government of Costa Rica submitted
to the Commission on Human Rights a draft optional protocol to the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment - which at the time was still under consideration - which provided
for a system of periodic visits.
296. At that time it was decided to give priority to the conclusion of the
Convention. Consequently, discussion of the draft optional protocol was
deferred. When, in December 1984, the Convention against Torture was adopted,
this same idea of a system of periodic visits was taken up in the context of
ths Council of Europe. In resolution 1986/56 the Commission on Human Rights
recommended, in view of this development, that other interested regions where
a consensus existed should consider the possibility of preparing draft
conventions based on the concept of a system of visits. It was decided to
defer consideration of the draft optional protocol until the forty-fifth
session in 1989. On 6 March 1989 the Commission decided to further defer
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