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Detention safeguards – the key to preventing torture (Part Two)

By Richard Carver, Senior Lecturer in Human Rights and Governance, Oxford Brookes University.

Richard Carver has more than 30 years of experience as a human rights researcher, working for Amnesty International, Human Rights Watch, ARTICLE 19, and a number of UN agencies. He has published extensively on national human rights institutions, particularly on criteria and techniques for measuring performance, impact and effectiveness. Originally an Africa specialist, his current work focuses on southeastern Europe. He holds a PhD in Human Rights and an LLM in International Law, both from Oxford Brookes University, where he is Senior Lecturer in Human Rights and Governance.

In my previous post, I explained the methodology behind our research on torture prevention and summarized the main findings.

The answer to our question Does Torture Prevention Work? was “yes.”

Prevention mechanisms generally reduce the incidence of torture. However, some mechanisms, notably those that protect detainees in the first hours and days after arrest, are more important than others. Complaints bodies (such as Ombudsman institutions) had no detectable preventive effect in the countries that we studied. This does not mean that complaints mechanisms “don’t work.” They may still provide an important remedy (in the broad sense) for individuals. However, the findings of complaints bodies do not appear to deter the authorities from continuing to torture.

The legal obligations on states are strongest in relation to the criminalization and prosecution of torture and the creation of monitoring bodies (in the Convention Against Torture and its Optional Protocol respectively). While we found both of these sets of measures to have positive impact, neither was as important as detention safeguards, which are less strongly protected in international law. Anti-torture activists have long argued that the greatest risk of torture is immediately upon arrest and that a preventive strategy should rest upon eliminating incommunicado detention; in Nigel Rodley’s words, torture is a “crime of opportunity.” Amnesty International’s 12-point programme against torture, launched in 1984, reflected this priority. Yet the Convention Against Torture, adopted in the same year, merely says (in Article 11) that states should keep detention and interrogation rules under review. More explicit protection comes in the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, but of course these are non-binding.

By all methods of analysis that we used, detention safeguards emerged as the most important protection against torture (provided that they are implemented in practice rather than just being on the statute book). It is important to note that, according to our analysis, other background factors also helped to explain whether or not torture took place: the level of democracy, economic development and conflict. But, even taking these other variables into account detention safeguards have a positive effect.

One of the most important measures is the elimination of unofficial detention. Many countries in our study, at some point over the past 30 years, have evaded the rules protecting detainees by simply holding them in unauthorized detention centres. In Kyrgyzstan, for example, police continue to bypass detention safeguards and a monitoring body by not immediately taking people they arrest into official custody (and also not notifying their family or friends).

Other case studies from our research show the positive impact of improved detention rules. In the United Kingdom, for example, the decisive step in almost completely eliminating torture from the criminal justice system was the introduction of the Police and Criminal Evidence Act in 1984. In particular, PACE introduced a duty solicitor scheme that ensured automatic free legal representation in every police station, which is regarded by British human rights activists as being crucial to the elimination of torture. It also introduced electronic recording of all investigative interviews of suspects.

Likewise, in Turkey, with the incentive of membership of the European Union, from 1999 successive governments introduced a series of new safeguards for detainees, which resulted in a dramatic improvement in the incidence of torture. Unfortunately, at the very end of our period of study, over the past four years or so, many of these safeguards have been neglected and the incidence of torture has risen again.

When torture persists, this is often because exceptions are built into the protections and safeguards, most often for reasons of national security or counter-terrorism. This is the case, for example, with Israel where the criminal justice system effectively protects the rights of suspects. In the occupied Palestinian territories, by contrast, none of these safeguards exists. Not surprisingly, this is where torture occurs.

The countries that we studied varied enormously in the resources available to support the criminal justice system, from Norway to Ethiopia. However, across the board we found that reducing reliance on confession evidence had a positive impact in reducing torture. Of course, torture occurs for a variety of reasons and extracting confessions or other testimony is only one of these. In some countries, such as South Africa, the punitive role of torture was seen as important. Nevertheless, torture in the countries we studied was overwhelmingly used as a means to obtain evidence. As alternative sources of evidence become available, the incentive to torture is reduced.

In many instances these alternative sources may be electronic surveillance, as in Turkey, or cellular phone data (as in South Africa). Of course, this development has been greatest in countries with more resources to devote to advanced forensic techniques, but we observed it as a general phenomenon. One Turkish activist described it to us thus: “Previously the police would reach evidence through the accused; now they reach the accused through evidence.”

In at least two countries in our study, a similar point was illustrated through the reverse process. Both Georgia and Kyrgyzstan lost a large number of trained police investigators with the collapse of the Soviet Union in 1991. The immediate effect in both instances was a dramatic rise in the incidence of torture. Clearly the Soviet system was not a model of respect for detainees’ rights, but the deprofessionalization of police work nevertheless had a very serious impact.

As our Philippines researcher Ricardo Sunga wrote: “Torture is a shortcut, a substitute for good police work.” Training police to do their job professionally is clearly an important part of the preventive puzzle.

In the third and final post in this series, I will discuss the gap between law and practice in torture prevention.

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