Effective Multilateralism in the Fight Against Torture:
Trends in the OSCE region and the way forward Recommendations from conference participants September 2019 Foreword
More than seven decades ago, the United Na- create can radicalise individuals, destroy families tions General Assembly adopted the Universal and harm the community as a whole. Therefore, Declaration of Human Rights, the first inter- preventing torture and tackling impunity for per- national text prohibiting torture in absolute petrators are integral to fair legal systems and the terms. Its fifth article, approved by unanimous rule of law, which are essential components of support, unequivocally stipulates, “no one shall promoting stability and safeguarding our shared be subjected to torture or to cruel, inhuman or security. degrading treatment or punishment”. Since then, the international community has made signifi- We can eradicate torture and other ill-treatment cant progress towards the eradication of torture. by joining forces, when defining common strat- The ban on torture and other ill-treatment has egies and ensuring implementation. As such, been incorporated into an extensive legal frame- effective multilateral cooperation within and work of international and regional human rights between international and regional organiza- commitments, and a vast network of anti-torture tions, such as the OSCE, the European Union, mechanisms is monitoring and raising awareness the United Nations and the Council of Europe, is on the torture ban at the international, regional crucial to making progress with regards to the re- and local level. maining challenges. Moreover, active involve- ment and support of civil society actors who Despite these efforts, torture and other ill-treat- courageously engage against this crime is of key ment are still practiced in the OSCE region and importance. beyond. Impunity remains high, and far too many victims of torture remain unacknowl- In this context, on 5 June 2019 we organised the edged. Aside from the appalling physical and international conference, “Effective Multilateral- psychological harm inflicted on victims, torture ism in the Fight Against Torture: Trends in the and other ill-treatment are counterproductive to OSCE region and the way forward”, in coopera- States’ security interests. The sense of indignity tion with the Slovak OSCE Chairmanship and and injustice that torture and other ill-treatment the OSCE Office for Democratic Institutions and Human Rights (ODIHR). The conference was proaches and discuss how to strengthen partner- co-sponsored by a total of 42 OSCE participating ships with a view to making multilateral efforts States: Albania, Andorra, Canada, the EU and its in the fight against torture and other ill-treat- Member States, Georgia, Iceland, Liechtenstein, ment more effective. Montenegro, North Macedonia, Norway, San Marino, Serbia, Switzerland, Ukraine and the This publication is our attempt at collecting and United States of America. structuring the recommendations made by the speakers and participants at the conference. The More than 140 participants attended the confer- overview document is drafted without prejudice ence throughout the day, which provided a plat- and does not endorse any recommendations over form for OSCE participating States, internation- others. Our hope is, however, that the document al organizations and civil society to take stock can serve as inspiration for further dialogue and of existing multilateral initiatives and evaluate possible action for relevant stakeholders. their effectiveness, in order to move forward with a collective response in the fight against torture We would like to thank all conference partici- and other ill-treatment. The open dialogue be- pants for their valuable contributions to the dis- tween key stakeholders also allowed participants cussion. We look forward to continuing our dia- to identify challenges, ensure complementary ap- logue at the next possible occasion.
Yours sincerely,
René Dinesen Wolfgang Amadeus Brülhart Florian Raunig Ambassador Ambassador Ambassador Permanent Representative of Permanent Representative of Permanent Representative of Denmark to the OSCE Switzerland to the OSCE Austria to the OSCE Despite the absolute prohibition against torture and other cruel, inhuman or degrading treatment or punishment (other ill-treatment) in international law and regional human rights commitments, torture and other ill-treatment are still practiced in the OSCE region and beyond. Recommendations from conference participants
Impunity remains high and far too At this conference, it became clear that many victims of torture remain unac- there are different but equally impor- knowledged. Added to this, societies are tant roles for governments, civil society, facing challenges to the very notion of organizations and the multilateral ar- the absolute prohibition against torture, chitecture in the fight against torture. heightened by widespread security con- cerns. The recommendations will be struc- tured as follows and directed at partici- The eradication of torture and other pating States or OSCE/ODIHR: ill-treatment can be achieved by joining forces, defining common strategies and ensuring effective implementation of Policy level shared commitments and obligations. National legal framework
Practice
5 Policy level To participating States
3 Further discuss good practices within the OSCE region of domestic prose- cutions of torture and other ill-treat- 1 Adopt and promote a zero tolerance policy on torture and other ill-treat- ment.
ment, and address root causes and other incentives for torture such as 4 In order to strengthen the independ- ent monitoring and the prevention corruption. of torture and other ill-treatment in all places of detention, consider rat- 2 Ensure that the zero tolerance policy translates into a safe and conducive ification of the Optional Protocol to the Convention against Torture and environment to report cases of tor- Other Cruel, Inhuman or Degrading ture and other ill-treatment for pro- Treatment or Punishment (OPCAT) fessionals of the security sector, vic- and the establishment of independ- tims, medical staff, lawyers, human ent national preventive mechanisms rights defenders and other actors. (NPMs).
5 Consider ratification of the Rome Statute of the International Criminal Article 7 (Crimes against humanity) (f): Torture Court.1 1
“when committed as part of a widespread or sys- tematic attack directed against any civilian popula- tion, with knowledge of the attack”; Article 8 (War crimes), para. 2: Torture or inhuman treatment, in- cluding biological experiments.
6 Recommendations from conference participants
6 Join the group of friends of the Con- vention against Torture Initiative 9 Engage in multilateral discussions on how to monitor the situation of tor- (CTI), in order to achieve progress ture and other ill-treatment in con- through cooperation and sharing ex- flict areas or occupied territories, in periences among States parties and order to develop a universal approach non-States parties to the United Na- such cases. tions Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) as 10 Review OSCE commitments regard- ing the prevention of and fight against well as civil society organizations, torture and other ill-treatment. international and regional organiza- tions. 11 Give due consideration to the need for multilateral action, for instance in 7 Recognize the competence of the Committee against Torture under the form of new OSCE commitments, Article 22 of the CAT to receive indi- to control the trade in tools of torture vidual communications. which both prohibit inherently abu- sive goods (e.g. spiked batons) and control goods which are frequently 8 Strengthen multilateral cooperation on the regional and international misused (e.g. kinetic impact projec- tiles). level, including by taking part in the Genocide Network, supporting the initiative of a Multilateral Treaty for 12 Ensure that the fight against torture and other ill-treatment remains high Mutual Legal Assistance and Extradi- on the OSCE agenda, despite varia- tion for Domestic Prosecution of the tions in Chair priorities. Most Serious International Crimes.
7 National legal framework To participating States
13 Include torture as a separate and spe- cific crime with an appropriate min- 15 Include provisions in national legis- lation that explicitly prohibit the use imum sentence reflecting the grave of evidence obtained through torture nature of the crime in national legis- and other ill-treatment and, in line lation. with the exclusionary rule stipulat- ed in Article 15 of the CAT3, declare any evidence or extrajudicial state- 14 Adopt a definition of torture in ac- cordance with Article 1 of the CAT. 2 ment obtained under torture or other ill-treatment inadmissible.
2 Article 1: 1. For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. 2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application. 3 Article 15: Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made. 4 The CAT clearly lays out that national legislation should provide for jurisdiction over torture not only committed on a State Party’s territory, but also when its own citizens, including its armed forces, commit torture abroad, when its citizens are victims of torture, or when the perpetrators, are just present on its territory.
8 Recommendations from conference participants
16 Ensure in law and practice that sus- pected or convicted offenders of the 19 Take measures to establish jurisdic- tion over the crime of torture and crime of torture can never benefit other ill-treatment whenever alleged from amnesties, pardons and similar offenders are present in their territo- mechanisms that lead directly or in- ry.4 directly to impunity for the crime of torture and other ill-treatment.
17 Stipulate in national legislation that the crime of torture is not subject to any statute of limitations.
18 Ensure that national legislation pro- vides for adequate and fair redress for victims of torture and other ill-treat- ment and their families, including full rehabilitation and compensation, also to increase trust in the justice system.
9 Practice To participating States
20 Implement the recommendations made by international, regional and 22 Ensure that NPMs are able to work effectively, independently and in national organizations on the pre- close cooperation with civil society vention of torture and other ill-treat- organizations. ment, including the concluding ob- servations of the Committee against Torture. 23 Establish effective and independent mechanisms to ensure that all alle- gations of torture and other ill-treat- 21 Ensure effective oversight and mon- itoring of all places of detention, in- ment are promptly, thoroughly and impartially investigated in accord- cluding the first hours of custody by ance with the principles and stand- police, through the development and ards of the Manual on the Effective strengthening of independent NPMs Investigation and Documentation of as well as through ongoing dialogue Torture and Other Cruel, Inhuman on the implementation of their rec- or Degrading Treatment or Punish- ommendations. ment (Istanbul Protocol).
10 Recommendations from conference participants
24 Ensure that all professionals in the criminal justice system (including 27 Ensure the independence of inves- tigative authorities, both functional judges, prosecutors, investigative au- and financial. thorities and medical personnel) re- ceive appropriate practical training (both initial and in-service train- 28 Build a coalition of States to discuss inter-State complaints in order to up- ing) on the identification, reporting hold human rights. and prevention of torture and other ill-treatment, including training on the Istanbul Protocol. 29 Improve coordination on the nation- al level in the investigation process of torture cases, including among inves- 25 Establish or reinforce specialized units with sufficient resources to effi- tigative authorities and immigration and asylum officers, to enhance the ciently investigate and prosecute tor- efforts to identify suspected perpe- ture under domestic and universal ju- trators, potential insiders, witnesses risdiction, including specialized “war or victims. crimes” units.
26 Actively support ongoing efforts to- wards the development, endorsement, and implementation of the interna- tional set of Guidelines for Investiga- tive Interviewing and associated legal and procedural safeguards, in order to reduce the risks of forced confes- sions during criminal investigations.
11 Practice To participating States
30 Enhance cooperation with civil soci- ety organizations in the fight against 32 Adequately contribute to the United Nations Voluntary Fund for Torture torture by, inter alia, allowing for Victims to support rehabilitation pro- civil society organizations to be civil grammes in the OSCE region. parties in international criminal pro- cedures and using the existing high skills and expertise in providing in- 33 Provide for holistic and full rehabili- tation and reintegration of survivors telligence, evidence and access to ex- of torture. perts, witnesses, insiders and victims developed by specialized civil society organizations in this field. 34 Take into account the needs of “indi- rect victims of torture”, such as rel- atives or witnesses of acts of torture. 31 Ensure that journalists and other me- dia actors can report freely on issues related to torture and other ill-treat- 35 Integrate victims’ perspectives in all aspects of the fight against torture ment, including from sessions of the Committee against Torture, in order and other ill-treatment. to ensure that the wider population is informed about the issues.
12 Recommendations from conference participants
36 Give greater consideration to the spe- cific protection needs of persons de- 39 Provide for a safe environment and in- clusion of civil society organizations prived of their liberty, such as wom- and human rights defenders working en, children, the elderly, the disabled to fight torture, other ill-treatment and the LGBTI community. and impunity.
37 Continue the dialogue with partici- pating States and civil society organ- 40 Always conform to the relevant OSCE commitments regarding the protec- izations on measures to prevent or tion of human rights defenders. control the import, export and trans- fer of goods used for capital punish- ment, torture or other ill-treatment.
38 Continue to collaborate with National Human Rights Institutions (NHRIs), NPMs and other national organiza- tions working on the prevention of torture and other ill-treatment.
13 Practice To the OSCE/ODIHR
41 Continue to closely collaborate with international and regional institu- 43 Further support OSCE participat- ing States in all the activities above tions, NHRIs, NPMs and civil society through expert advice, capacity build- organizations working to fight tor- ing and the provision of technical as- ture, other ill-treatment and impuni- sistance, including by continuing to ty in the OSCE region. work closely with OSCE field offices.
42 Integrate victims’ perspectives in all aspects of the fight against torture 44 Continue to empower and provide space to civil society organizations and other ill-treatment. to pursue their work on combatting torture, other ill-treatment and impu- nity, including by legitimizing their role through joint work in the fight against torture and other ill-treat- ment, and by promoting and facilitat- ing dialogue between States and civil society.
14 Recommendations from conference participants
45 Initiate more cooperation across the three dimensions to ensure human rights are adequately addressed in the first dimension.
15 Effective Multilateralism in the Fight Against Torture: Trends in the OSCE region and the way forward
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