DETENTION MONITORING TOOL FACTSHEET
59. Rule 57 (2), the Nelson Mandela Rules; Rule 25 (1), the Bangkok Rules.
60. Rule 57 (3), the Nelson Mandela Rules.
61. In many national legal systems, torture and sometimes also other
forms of cruel, inhuman or degrading treatment constitute a crime;
the UN Convention against Torture (Art. 4) stipulates that State Parties
ensure that all acts of torture as defined in the Convention are offences
under criminal law. However, even if this is not the case, other criminal
law provisions, such as abuse of power, serious bodily harm or rape,
will be applicable in case of allegations of torture.
62. Rules 57 (3) and 71, the Nelson Mandela Rules.
63. Preamble of the CED.
64. Art. 1 of the Declaration on the Protection of All Persons from Enforced
Disappearance, United Nations General Assembly Resolution 47/133,
18 December 1992.
65. Note that in accordance with Art. 3 CED, acts of disappearance
committed by private individuals or groups shall be officially
investigated by the State authorities.
66. Art. 12 CED.
67. Various United Nations human rights mechanisms, such as the
Human Rights Committee, the Committee against Torture, and special
procedures of the Human Rights Council have called for the abolition
of incommunicado detention. The former United Nations Commission
on Human Rights has repeatedly reaffirmed that ‘prolonged
incommunicado detention may facilitate the perpetration of torture and
can in itself constitute a form of cruel, inhuman or degrading treatment
or even torture’. Despite this, many countries retain the legal possibility
to hold persons, particularly terrorism suspects, incommunicado for a
certain amount of days.
68. Rules 6 and 7, the Nelson Mandela Rules; the Havana Rules, para. 21;
Art. 17 CED.
69. In the case of Mikiashvili v. Georgia, Application no. 18996/06,
judgment of 9 October 2012, para. 87, the ECtHR held ‘all the
investigative measures were conducted by the Investigation
Department of the Ministry of Justice, the very same Ministry which
was in charge of the prison system. Their findings were then simply
endorsed by a prosecutor. [...] This institutional connection between
the investigators and those implicated in the incident raises legitimate
doubts as to the independence of the investigation conducted’.
70. In the case of Dvalishvili vs. Georgia, Application no. 19634/07,
judgment of 18 December 2012, para. 50, the ECtHR noted, ‘the
authorities accepted the credibility of the police officers’ testimonies
without giving any convincing reasons for doing so, despite the
fact that those officers’ statements might have been subjective and
aimed at evading criminal liability for the purported ill-treatment of
the applicant’.
71. ECtHR, Pa˘duret¸ vs. Moldova, Application no. 33134/03, judgment
of 5 January 2010, para. 63.
72. ECtHR, Buzilo vs. Moldova, Application no. 52643/07, judgment
of 21 February 2012, paras. 31 and 32.
73. Istanbul Protocol, para. 116; Guidelines of the Committee of Ministers
of the Council of Europe on eradicating impunity for serious human
rights violations, VII.
74. Minnesota Protocol, paras. 32 and 33.
75. Art. 13 CAT; Art. 12 (4) CED; Istanbul Protocol, para. 112; Minnesota
Protocol, paras. 86 and 87; Guidelines of the Committee of Ministers
of the Council of Europe on eradicating impunity for serious human
rights violations, VII (6).
76. Note, however, that a transfer to another establishment could be
seriously detrimental for the prisoner concerned, in particular when
moved far from his/her family. In such a case, a transfer should be
used as a protection measure only if no other measures are available.
77. Rule 45, the Nelson Mandela Rules.
Penal Reform International and Association for the Prevention of Torture | Incident management and independent investigations
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