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Torture prevention – why practice lags behind law? (Part Three)

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 this third and final post on the question Does Torture Prevention Work? I shall discuss an important issue that emerged from our research: the significant gap between law and practice in the implementation of torture prevention mechanisms.

When we have presented our findings in recent months, some audiences have been surprised by our observation that there is often a substantial gap between law and practice. To us, the point seems self-evident. Put at its simplest, nearly every country in the world criminalizes the acts that make up torture, yet torture persists in all but a handful and the number of prosecutions of torturers is far below the actual incidence of the crime. Law and practice evidently diverge.

In the first post, I explained how we separately measured the legal provisions establishing various preventive mechanisms and the actual practice. In no instance was there a significant correlation between preventive laws and a decline in the incidence of torture. However, for several preventive mechanisms the actual practice was extremely important in preventing torture, notably detention safeguards, as discussed in the second post: an end to unofficial detention, notification of friends and family, access to a lawyer and medical doctor, presentation before a judge, electronic recording of interviews, and reduced reliance on confession evidence.

For these detention safeguards the gap between law and practice is substantial. In other words, introducing a legal right of prompt access to a lawyer may be an important first step to realizing the right in practice, but it is does not automatically guarantee that it will be respected. There are clearly a variety of reasons why these rights may not be realized. Aside from the obvious explanation that the authorities simply do not allow a suspect to see a lawyer, detainees may not avail themselves of their right because they are unaware of it, because they cannot afford a lawyer, because lawyers are not available (for example in remote areas) or for a number of other reasons. The country chapters in our book explore these in greater detail.

Similar considerations apply when it comes to the right to an independent medical examination. An enormous problem in many countries is police interference in the process, for example by demanding that a medical report be handed over to the detaining authority. But there are other obstacles too. There is usually a lack of expertise among medical personnel as to how to examine torture victims. And the available medical staff may not be sufficiently independent, retaining a structural link to the detaining authorities.

When it comes to the criminalization, investigation and prosecution of torture, the gap between law and practice is even greater. Given that the problem of impunity for torturers is almost universal, this is hardly surprising. As well as looking at the legal provisions outlawing torture, we measured a number of factors to determine how effectively the system works in practice: are complaints of torture actually filed? Are investigations independent? Are prosecutions brought? Is the rate of conviction comparable to that of other violent crimes? Are the penalties imposed comparable to those that might be expected for a non-state violent criminal? Most states in our study fell dramatically short on all these measures. Interestingly, one of the most important elements turned out to be whether torture victims actually filed a complaint. Clearly, in many instances there is no confidence in the system, so investigations fall at the first hurdle.

Even states that have fully independent investigations of alleged torture, such as the United Kingdom and South Africa, still do not perform adequately, suggesting that there are systemic problems in investigating and prosecuting police or prison personnel.

For the other two sets of preventive mechanisms in our study, monitoring and complaints bodies, the gap between law and practice was much less significant. In the case of complaints bodies, practice more or less corresponded to the legal provisions, meaning that if such a mechanism was established by law it would function as intended. Unfortunately, as noted in the first post, complaints bodies do not have a significant preventive impact.

For monitoring bodies, the gap between law and practice has widened in recent years. This is probably explained by the proliferation of such bodies as a consequence of the Optional Protocol to the Convention Against Torture. This is worrying because monitoring mechanisms do have a positive effect, but only if they are able to operate independently and without interference.

The precise relationship between law and practice was not something that could be determined by our quantitative analysis, but was examined in our country studies. In isolated instances, such as Norway and Hungary, practice sometimes moved in advance of law. Usually, however, as might be expected, legal reform was a precondition for improved practice. How exactly to move from one to the other is a question that can only be answered on a case-by-case basis. For example, police in Argentina are decentralized within a federal system and have a long-standing culture of local autonomy (and indiscipline). In Turkey, by contrast, although the population is twice as large, the police force is centralized and disciplined, making it a relatively easy matter for local police stations to comply with legal changes, provided that the political will exists at the top. The differing implications for anti-torture campaigners at the national level are self-evident.

In many instances training will provide the missing link. We also assigned quantitative scores to training (of police and prison personnel, of investigators and prosecutors, and of monitoring and complaints staff). It was clear that this played an important part in improving practice. However, we also noted that it was not usually very helpful to provide “human rights” training that would be regarded by trainees as optional and inessential to their own jobs. It would be far better to enhance the professional skills of trainees, for example by equipping police with the ability to construct a criminal case without resort to confessions (and certainly without coercion).

We concluded our book on a note of cautious optimism:

The last 30 years have seen a series of important developments in torture prevention, in the form of both international and regional agreements, and national reforms. There is a certain irony that the preventive mechanisms that clearly emerge as the most effective – safeguards in pre-charge detention – are actually the weakest standards in international law. Nevertheless, the legal framework to prevent torture is generally clear regarding detention procedures, monitoring mechanisms, and the investigation and prosecution of torturers. The implementation of these standards – the translation of law into practice – has had a positive effect, even if it has been slow and patchy. Our findings contradict those who would dismiss the normative framework of human rights as ineffective, as well as those who endlessly search for a new flavour of the month in the fight against torture. Innovation is clearly positive and it would be complacent to believe that the scourge of torture is close to being eliminated. What this study has shown, however, is that the basic elements of an effective torture prevention strategy are now well understood. Years of patient struggle will be needed to make such a strategy effective.

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