A/71/298
corruption and by providing for adequate selection, training and remuneration of
law enforcement and judicial personnel (see Human Rights Council resolution
31/31). Such steps are indispensable to bringing about positive changes in the
institutional culture and the mindset of law enforcement and other officials.
31. The protocol must apply to interviews conducted by law enforcement and
other investigative bodies such as intelligence and military services and
administrative bodies, during counter-terrorism operations and in situations of
armed conflict, including extraterritorially. In this regard, the Special Ra pporteur is
concerned that in some jurisdictions intelligence services have been empowered to
apprehend, detain and question persons in connection with national security
offences, as a way to circumvent legal and procedural safeguards applicable to
traditional law enforcement agencies — a practice that has at times lamentably
enabled the perpetration of egregious acts of torture and ill -treatment. The protocol
should emphasize that there are no legitimate reasons for granting intelligence
agencies such powers duplicating those held by traditional law enforcement bodies.
Intelligence agencies mandated by law to exercise such powers must comply fully
with international human rights standards, including those pertaining to the rights to
liberty, fair trial, the use of torture-tainted information and the absolute prohibition
of torture and ill-treatment (see A/HRC/10/3; A/HRC/14/46; and European Court of
Human Rights, Öcalan v. Turkey). Intelligence services entrusted with police
powers must comply with rules applicable to the conduct of interviews in the
criminal justice system. The above rationale also applies where military services or
other investigative bodies are entrusted with police powers in the national law
enforcement context.
32. The Special Rapporteur is concerned by the deprivation of liberty of persons
for the sole purpose of questioning, a practice that entails severe risks of torture and
ill-treatment. Law enforcement, military and intelligence agencies cannot be
permitted to detain persons without probable cause and for the sole purpose of
gathering information or intelligence, including in armed conflict (see A/HRC/14/46
and A/HRC/10/3). The apprehension and detention of individuals in the absence of
reasonable suspicion that they have committed or are about to commit a criminal
offence, or of other internationally accepted lawful grounds for detention, are
prohibited. Administrative detention outside armed conflict is prohibited save the
“most exceptional circumstances”; when justified by a “present, direct and
imperative threat” that cannot be addressed by alternative measures, it must be
accompanied by adequate safeguards, last no longer than “absolutely necessary” and
be subject to prompt and regular review. When authorized, administrative detention
must be ordered, implemented and supervised by judicial authorities. Standards and
procedural safeguards applicable to interviews of suspects in the criminal justice
systems must equally and unambiguously apply, as a matter of law and policy, to the
questioning of persons held in administrative or preventive detention outsi de of
armed conflict (see Human Rights Committee, general comment No. 35 (2014) on
liberty and security of person (article 9 of the International Covenant on Civil and
Political Rights); and A/56/156).
33. The protection offered by international human rights law remains applicable
during armed conflict and supplements that offered by international humanitarian
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