58
A practical guide to the Istanbul Protocol – for lawyers
ed by the African Commission on Human
and Peoples’ Rights at its 32nd Ordinary
Session.
17. In particular the UN Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Articles
7 and 10 of the International Covenant on
Civil and Political Rights, Article 3 of the
European Convention on Human Rights,
Article 5 of the African Charter on Human
and Peoples’ Rights, Article 5 of the American Convention on Human Rights and the
Inter-American Convention to Prevent and
Punish Torture. Torture is also prohibited
under international humanitarian law, in
particular common Article 3 to the four
Geneva Conventions of 1949, and constitutes an international crime, both in its
own right and as an element of genocide,
crimes against humanity and war crimes.
See on the obligations of states parties
under the Convention against Torture, REDRESS, Bringing the International Prohibition of Torture Home: National Implementation Guide for the UN Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, January
2006.
18. See O.A.S. Treaty Series No. 67.
19. For a summary of findings, see REDRESS,
Reparation For Torture: A Survey of Law
and Practice in Thirty Selected Countries,
April 2003, at p. 41. [REDRESS’ Audit]
20. “In order to supervise the strict observance
of relevant laws and regulations, places
of detention shall be visited regularly by
qualified and experienced persons appointed by, and responsible to, a competent authority distinct from the authority
directly in charge of the administration of
the place of detention or imprisonment.”
UN Body of Principles for the Protection of
All Persons under Any Form of Detention or
Imprisonment, Principle 29.
21. Report of the Special Rapporteur on torture, N. Rodley E/CN.4/1995/34,12 January
1995, paragraph 926 (c).
22. Optional Protocol to the Convention
Against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment.
Adopted on 18 December 2002 at the fiftyseventh session of the General Assembly
of the United Nations by resolution A/
RES/57/199.
23. State Parties are obliged to “maintain, designate or establish” under Art. 17 of the
Optional Protocol to the CAT. For guidelines on establishing independent and effective national preventative mechanisms,
see Preventing Torture at Home: A Guide to
the Establishment of National Preventative
Mechanisms, Amnesty International, IOR
51/004/2004, 1 May 2004.
24. Report of CAT on systematic practice of
torture in Turkey under Article 20 of the
UN Convention against Torture, A/48/44/
Add.1, 15 November 1993, para. 47.
25. CPT Standards: Substantive sections of
the CPT’s General Reports, 12th General
Report, Council of Europe, CPT/Inf (2002)
Rev. 2003, para.40: “As from the outset of
its activities, the CPT has advocated a trinity of rights for persons detained by the
police: the rights of access to a lawyer and
to a doctor and the right to have the fact
of one’s detention notified to a relative or
another third party of one’s choice.” Principles 15-19 of the Body of Principles.
26. Principle 16 (2) of the Body of Principles;
Rule 38 of the Standard Minimum Rules for
the Treatment of Prisoners. The International Court of Justice has in the LaGrand
Case (Germany v. United States of America),
ICJ Reports 2001, para.77 and the Case Concerning Avena and other Mexican Nationals (Mexico v. United States of America),
Judgment of 31 March 2004, recognised
that Article 36 (1) of the Vienna Convention
on Consular Relations creates individual
rights for the national concerned.
27. Adopted by General Assembly resolution
43/173 of 9 December 1988.
28. As recognised by the UN Human Rights
Committee, even when persons are under
“administrative detention”, which is a detention without charge or trial, authorised
by administrative order rather than by judicial decree (normally applied by States
in emergencies) the legality of the detention should be subject to judicial review.
[Communication No. 560/1993, CCPR/
C/59/D/560/1993, Hammel v. Madagascar, Communication No. 155/1983,CCPR/
C/29/D/155/1983; at paras 18.2 and 20;
see also Torres v. Finland, Communication No. 291/1988, CCPR/C/38/D/291/1988;
Vuolanne v. Finland, Communication No.
265/1987, CCPR/C/35/D/265/1987, Portorreal
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