Derecho Internacional Público – dipublico.org Cátedra I de Derecho Internacional Público de la Facultad de Derecho y Ciencias Políticas de la Universidad Católica de La Plata – Argentina
The United Nations Convention Against Torture and its Optional Protocol
Second Edition
Edited by Manfred Nowak, Moritz Birk, and Giuliana Monina
ISBN: 9780198846178 (Hardcover)
Publicado: 19 February 2020
Páginas: 1360
The prohibition of torture – the right to physical and mental integrity – is guaranteed in the strongest terms under international law. It is protected as an absolute right, non-derogable even in times of war or public emergency under many human rights treaties and is also generally accepted as a part of customary international law and even ius cogens. The main instrument to combat torture within the framework of the United Nations is the Convention Against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT).
This Commentary explores the problematic definition of torture in the Convention, the substantive obligations of States parties, the principle of ‘non-refoulement’, provisions for international monitoring, and also the concept of preventative visits to all places of detention as contained in the Optional Protocol to the CAT. It also covers issues including the distinction between torture and cruel inhuman or degrading treatment and the principle of non-admissibility of evidence extracted under torture. Full article by article commentary on the Convention also provides historical context and thorough analysis of case-law and practice from international and regional courts and monitoring bodies. Relevant case-law from domestic courts are also discussed.
Despite the broad ratification and the universal recognition of the prohibition of torture and other forms of ill-treatment we witness a ‘global crisis’ affecting the majority of countries worldwide. In recent years the protection of human rights is experiencing a particularly serious crisis – also affecting the phenomenon of torture – in which official narratives and public belief often trivialise and even endorse such practices in the name of security and the fight against terrorism, ignoring the suffering and damages it causes. On the other hand, the positive experiences in some States illustrate that torture can be eradicated if the provisions of CAT and OPCAT are taken seriously and are being fully implemented.
This is an open access title available under the terms of a CC BY-NC 4.0 International licence. It is offered as a free PDF download from OUP and selected open access locations.
CONTENIDO
Introduction
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Preamble
Part I: Substantive Articles
Article 1. Definition of Torture
Article 2. Obligation to Prevent Torture
Article 3. Principle of Non-Refoulement
Article 4. Obligation to Criminalize Torture
Article 5. Types of Jurisdiction over the Offence of Torture
Article 6. Procedural Safeguards During the Preliminary Investigation Phase
Article 7. Aut Dedere aut Judicare
Article 8. The Convention as a Basis for Extradition
Article 9. Mutual Judicial Assistance
Article 10. Training of Personnel
Article 11. Review of detention and interrogation rules
Article 12. Ex Officio Investigations
Article 13. Right of Victims to Complain
Article 14. Right of torture victims to adequate remedy and reparation
Article 15. Non-Admissibility of Evidence Obtained by Torture
Article 16. Cruel, Inhuman or Degrading Treatment or Punishment
Part II: Procedural Articles
Article 17. Committee against Torture
Article 18. Rules of Procedure
Article 19. State Reporting Procedure
Article 20. Inquiry Procedure
Article 21. Inter-State Communications
Article 22. Individual Complaints Procedure
Article 23. Privileges and Immunities
Article 24. Annual Report
Part III: Final Clauses
Article 25. Signature and Ratification
Article 26. Accession and Succession
Article 27. Entry into Force
Article 28. Opting out of the inquiry Procedure
Article 29. Amendment
Article 30. Settlement of Disputes
Article 31. Denunciation
Article 32. Notification by the Secretary-General
Article 33. Authentic Texts
Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Preamble
Part I: General Principles
Article 1. System of Preventive Visits to Places of Detention
Article 2. Establishment of a UN Subcommittee on Prevention
Article 3. National Preventive Mechanism
Article 4. Obligation to allow Preventive Visits to all Places of Detention
Part II: Subcommittee on Prevention
Article 5. Size and Composition of the Subcommittee on Prevention
Article 6. Nomination of Subcommittee Members
Article 7. Election of the Subcommittee
Article 8. Filling of Vacancies
Article 9. Term of Office
Article 10. Rules of Procedures
Part III: Mandate of the Subcommittee on Prevention
Article 11. Mandate of the Subcommittee
Article 12. Obligations of States Parties to Cooperate with the Subcommittee
Article 13. Obligations of the Subcommittee Concerning Country Missions
Article 14. Obligation of States Parties to Facilitate Visits by the Subcommittee to Places of Detention
Article 15. Prohibition of Sanctions against any Source of Information of the Subcommittee
Article 16. Reports of the Subcommittee
Part IV: National Preventive Mechanisms
Article 17. Establishment of National Preventive Mechanisms
Article 18. Independence, Pluralism and Efficiency of National Preventive Mechanisms
Article 19. Mandate and Power of National Preventive Mechanisms
Article 20. Obligations of States Parties to Facilitate Visits by the National Preventive Mechanisms
Article 21. Prohibition of Sanctions against any Source of Information of the NPM
Article 22. Obligation of States Parties to Examine the Recommendations of National Preventive Mechanisms
Article 23. Annual Report of the National Preventive Mechanism
Part V: Declaration
Article 24. Temporary Opting-Out Declaration
Part VI: Financial Provisions
Article 25. Financing of the Subcommittee
Article 26. Special Fund
Part VII: Final Provisions
Article 27. Signature, Ratification and Accession
Article 28. Entry into Force
Article 29. Validity in Federal States
Article 30. Prohibition of Reservations
Article 31. Relation to Regional Systems of Preventive Visits to Places of Detention
Article 32. Relation to the International Committee of the Red Cross
Article 33. Denunciation
Article 34. Amendments
Article 35. Privileges and Immunities
Article 36. Obligations of Members of the Subcommittee during Country Missions
Article 37. Authentic Texts
Appendices
AUTORES
Manfred Nowak, Scientific Director of the Ludwig Boltzmann Institute of Human Rights, and Professor of International Human Rights at the University of Vienna, Moritz Birk, Head of the Department of Human Dignity and Public Security, Ludwig Boltzmann Institute of Human Rights,Giuliana Monina, Researcher in the Department of Human Dignity and Public Security, Ludwig Boltzmann Institute of Human Rights
Manfred Nowak was appointed as independent expert leading the United Nations Global Study on Children Deprived of Liberty in October 2016. He is Professor for International Human Rights at the University of Vienna, where he is the scientific director of the Vienna Master of Arts in Human Rights and co-director of the Ludwig Boltzmann Institute for Human Rights. He serves as Secretary General of the Global Campus of Human Rights in Venice. Manfred Nowak has carried out various expert functions for the UN, the Council of Europe, the EU, and other inter-governmental organizations. He served for many years in various functions as UN Expert on Enforced Disappearances (1993 to 2006) and as one of eight international judges in the Human Rights Chamber for Bosnia and Herzegovina in Sarajevo (1996 to 2003). He served as UN Special Rapporteur on Torture (2004 to 2010), where he visited numerous institutions throughout the world where children were deprived of liberty in unimaginable conditions.
Moritz Birk is Head of the department ‘Human Dignity and Public Security’ at the Ludwig Boltzmann Institute of Human Rights. He joined the Institute in 2009 as Assistant to the UN Special Rapporteur on Torture (-2010) and has since implemented numerous research and technical capacity projects on torture and ill-treatment worldwide. e lectures. Before joining the Institute he worked with the UNHCR and human rights organisations in Ghana, Mexico, Senegal and Sweden. He holds an LL.M. in International Human Rights Law, studied law in Germany and France and is certified as organisational consultant.
Giuliana Monina is researcher at the Ludwig Boltzmann Institute of Human Rights – Human Dignity and Public Security Department. She joined in 2016 and has since focused on several research projects on the topics of torture and ill-treatment as well as migration and asylum. She has completed her legal studies at the Universities of Bologna. Before the Ludwig Boltzmann Institute of Human Rights, Giuliana was a practicing lawyer in Italy and has worked with several human rights organizations, including the European Union Agency for Fundamental Rights.
Contributors:
Margit Ammer is Senior Researcher at the department ‘Asylum, Anti-discrimination and Diversity’ at the Ludwig Boltzmann Institute of Human Rights. Her main areas of expertise include the fields of asylum and migration as well as environment-related forms of mobility. She is lecturing on international human rights law, EU asylum and migration policy, and environment and human rights at the University of Vienna.
Moritz Birk is Head of the department ‘Human Dignity and Public Security’ at the Ludwig Boltzmann Institute of Human Rights. He joined the Institute in 2009 as Assistant to the UN Special Rapporteur on Torture (-2010) and has since implemented numerous research and technical capacity projects on torture and ill-treatment worldwide. e lectures. Before joining the Institute he worked with the UNHCR and human rights organisations in Ghana, Mexico, Senegal and Sweden. He holds an LL.M. in International Human Rights Law, studied law in Germany and France and is certified as organisational consultant. E-Mail: [email protected] <mailto:[email protected]>
Kerstin Buchinger holds a position as a scientific legal officer at the Austrian Constitutional Court. She is currently being assigned referee to the Austrian Ombudsman Board (Austria’s NPM), where she is mainly entrusted with OPCAT issues. Before that, she worked as a legal researcher at the Ludwig Boltzmann Institute of Human Rights in Vienna with a research focus on asylum and anti-discrimination law.
Nora Katona holds a degree in law from the University of Vienna and a Master degree in Human Rights and Democratisation from the European Inter-University Centre in Venice. Currently, she works as a researcher at the Ludwig Boltzmann Institute of Human Rights (Vienna, Austria) in the team Human Dignity and Public Security. Her research focuses on the prevention of torture and ill-treatment, protection of human rights in the criminal justice system as well as trafficking in human beings.
Johanna Lober LL.M currently coordinates the component “dealing with the past” in the GIZ-project to support stabilization and peace in Mali, where she advises the Commission for Truth, Justice and Reconciliation on a comprehensive reparation programme and commemoration policy. Previously, she worked as researcher, project expert and co-team leader for the Human Dignity and Public Security Team at the Ludwig Boltzmann Institute of Human Rights (Vienna) on torture prevention and human rights in the context of security and justice sector reform. As former member of a Human Rights Monitoring Commission in Vienna, she has practical experience in monitoring the rights of persons in police detention. Holding an LL.M in International Human Rights Law, her current interest focuses on transitional justice processes in context of fragility and ongoing conflict.
Stephanie Krisper completed her legal studies in Vienna and Paris as well as a master on human rights and democratization in Venice and Maastricht. She worked in humanitarian aid, refugee law and as human rights expert for NGOs, the Foreign Ministry and the Ludwig Boltzmann Institute of Human Rights where she assisted Manfred Nowak in his work on anti-torture by coordinating a national commission monitoring places of detention (later part of the Austrian NPM). E-Mail: [email protected] <mailto:[email protected]> .
Giuliana Monina is researcher at the Ludwig Boltzmann Institute of Human Rights – Human Dignity and Public Security Department. She joined in 2016 and has since focused on several research projects on the topics of torture and ill-treatment as well as migration and asylum. She has completed her legal studies at the Universities of Bologna. Before the Ludwig Boltzmann Institute of Human Rights, Giuliana was a practicing lawyer in Italy and has worked with several human rights organizations, including the European Union Agency for Fundamental Rights. E-Mail: [email protected] <mailto:[email protected]> .
Manfred Nowak was appointed as independent expert leading the United Nations Global Study on Children Deprived of Liberty in October 2016. He is Professor for International Human Rights at the University of Vienna, where he is the scientific director of the Vienna Master of Arts in Human Rights and co-director of the Ludwig Boltzmann Institute for Human Rights. In addition, he serves as Secretary General of the Global Campus of Human Rights in Venice.
Manfred Nowak has carried out various expert functions for the UN, the Council of Europe, the EU and other inter-governmental organizations. Most importantly, he served for many years in various functions as UN Expert on Enforced Disappearances (1993 to 2006) and as one of eight international judges in the Human Rights Chamber for Bosnia and Herzegovina in Sarajevo (1996 to 2003). Most prominently, Manfred Nowak served as UN Special Rapporteur on Torture (2004 to 2010), where he also visited numerous institutions in all world regions where children were deprived of liberty in unimaginable conditions.
Aside from Vienna University, Manfred Nowak was Professor of International Law and Human Rights at various prestigious universities, such as Utrecht, Lund, Stanford and the Graduate Institute in Geneva, and has published more than 600 books and articles in this field, including various language editions of the CCPR-Commentary, a CAT-Commentary and an introduction to the International Human Rights Regime.
Roland Schmidt is an associate researcher with the Ludwig Boltzmann Institute of Human Rights. From 2006 to 2011, he worked as assistant to the institute’s director, Manfred Nowak, including his role as UN Special Rapporteur on Torture. Mr. Schmidt participated in various UN fact finding missions and contributed also to the first edition of the Commentary on the UN Convention against Torture. Furthermore, he focuses in his research on so-called ‘deeply divided societies’ and the role of political and legal institutions when it comes to attenuating intercommunal tensions.
Andrea Schuchner is a human rights-oriented philologist who has worked with the European Commission, the UNDPKO, the Ludwig Boltzmann Institute of Human Rights and the German Center for International Peace Operations (ZIF) on topics of democratization, human rights in development, racism and xenophobia, and peace-building.
Gerrit Zach has a background in law and sociology and has been working on human rights and rule of law issues for over 10 years. She was with the Human Rights Department of the Austrian Ministry of Foreign Affairs, then spent two years in Afghanistan in international development on strengthening the rule of law, specifically the access to a lawyer. Gerrit worked with the Ludwig Boltzmann Institute of Human rights from 2014-2018 on torture prevention and human rights in the criminal justice system before joining the OSCE Programme Office in Dushanbe in 2018. </mailto:[email protected]> </mailto:[email protected]> </mailto:[email protected]>
