Imagini ale paginilor
PDF
ePub

requires. It was agreed to include the addition in brackets for consideration by the Commission on Human Rights. 36. Article 2, as adopted by the working group, is therefore as follows:

1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.

3. An order from a superior officer or a public authority may not be invoked as a justification of torture (However, this may be considered in mitigation

of punishment if justice so requires). One delegation indicated that it had some reservations regarding article 2(3).

ARTICLE 3 OF THE ORIGINAL DRAFT

37. Article 3 of the draft convention (E/CN.4/1285) was as follows: Each State Party shall, in accordance with the provisions of the present Convention, take legislative, administrative, judicial and other measures to prevent torture and other cruel, inhuman or degrading treatment or punishment from being practised within its jurisdiction.

38. It was agreed to delete article 3 on the basis that its objective had been achieved by the revised article 2(1).

ARTICLE 3 (ARTICLE 4 OF ORIGINAL DRAFT)

39. The equivalent article in the original draft (E/CN.4/1285) was article 4 which was as follows: "No State Party may expel or extradite a person to a State where there are reasonable grounds to believe that he may be in danger of being subjected to torture or other cruel, inhuman or degrading treatment or punishment."

Article 3 of the revised draft (E/CN.4/WG.1/WP.1) was as follows: "No State Party shall expel, return ("refouler") or extradite a person where there are substantial grounds for believing that he would be in danger of being subjected to torture."

40. Questions were raised regarding the compatibility of the proposed article with previous extradition agreements concluded between States Parties and States not parties to the Convention against Torture. It was felt preferable not to include an exception for such cases in the text of the article lest such a limitation be interpreted as encouraging extradition to countries where the persons .concerned would be subjected to torture. It was proposed, rather, that the following remark be included in the report of the Commission : "Some delegations indicated that their States might wish, at the time of signature or ratification of the Convention or accession thereto, to declare that they did not consider them. selves bound by Article 3 of the Convention, in so far as that Article might not be compatible with obligations towards States not party to the Convention under extradition treaties concluded before the date of signature of the Convention."

41. It was agreed that the words “to a State" should be added after the word "person" in the revised draft. These words were already present in the French and Russian translations of the draft.

42. The advisability of including the word "return” (“refouler”) in the revised draft of article 3 gave rise to considerable discussion. In favour of the proposal it was said that there were strong humanitarian considerations for the inclusion of the word "return” which broadened the protection of the persons concerned. The concept was found also in Article 33(1) of the 1951 Convention relating to the status of refugees. On the other hand the view was expressed that the 1951 Convention on Refugees was on a quite different subject and, in addition, was not broadly accepted. The question was also raised whether the inclusion of the concept of "return” in Article 3 might not require a State to accept a mass influx of persons when it was not in a position to do so. It was also pointed out that disagreement about the concept of return or refoulement had led to failure in the drafting of the Convention on Territorial Asylum. Consequently, it was proposed either that the term be deleted or that specific provision be made in the Convention for States to attach a reservation to their acceptance of the article.

43. The revised draft of article 3 provided that expulsion, return or extradi. tion should not occur where there are "substantial grounds for believing" that a person would be in danger of being subjected to torture. The original draft had used the words "reasonable grounds to believe" and other alternatives suggested were “substantial evidence indicating" and "substantial indications”. The view was expressed that some of the formulations proposed-such as the word "grounds"-were to vague. The term "evidence” was also criticized as possibly too technical and lending itself to different interpretations in the various legal systems. The view was expressed that such problems were difficult to avoid and that the effective application of the provision would, in any event, depend upon the good faith of those concerned.

44. It was said that the purpose of the provision was to afford the greatest possible protection against torture and that the evidentiary requirement should not be too rigorous and should be kept to a minimum. It was further said that the burden of proof should not fall solely upon the person concerned.

45. It was proposed that the word "where" should be replaced by “as long as" or "when" so as to allow for extradition or expulsion in cases where new developments after a lapse of time had removed the danger of the persons concerned being subjected to torture. On the other hand, it was felt that the word "where" was adequate to cover such situations.

46. At the meeting of the working group on 7 March 1979 the representative of the USSR proposed the following text for article 3 (E/CN.4/WG.1/WP.2) :

1. No State Party shall expel or extradite a person to another State where substantial evidence indicates that he may be in danger of being subjected to torture.

2. The evidence referred to in the preceding paragraph of this article includes above all situations characterized by flagrant and massive violations of human rights brought about when apartheid, racial discrimination or genocide, the suppression of national liberation movements, aggression or the occupation of foreign territory are made State policy.

3. The provisions of this article shall not be invoked as grounds for refusing to institute proceedings against persons who have committed crimes against peace or mankind, or war crimes as defined in the relevant inter

national instruments". 47. It was said by the author that in paragraph 2 an attempt had been made to develop and illustrate the concept of "substantial evidence" by citing certain types of situations which arose as a result of State policy and which, in his view, were most conducive to torture practices. The situations referred to were based broadly on those mentioned in General Assembly resolution 32/130, although the lists were not identical. It was not possible to make an exhaustive list of relevant situations. The term "colonialism" was not included because it was encompassed in the broader reference to "the suppression of national liberation movements”.

48. The view was expressed, on the other hand, that the listing of specific types of situations might be misinterpreted to imply that there were other situations in which torture could be tolerated. It was also said that the main purpose of the article was to ensure a separate evaluation of the case of each individual, and that it was thus not helpful to refer to general situations.

49. It was said by the sponsor that paragraph 3 of the USSR proposal, which took into account comments made by other delegations, aimed at ensuring that the article could not be invoked as a pretext for refusing to institute proceedings against persons who have committed the crimes specified. The paragraph would secure punishment for such criminals, but did not oblige States to extradite them to countries where they could be in danger of being subjected to torture.

50. One delegation proposed that article 3 be deleted. It was agreed that discussion of article 3 should be suspended to allow further consideration and consultation.

ARTICLE 10 (ARTICLE 5 OF THE ORIGINAL DRAFT) 51. Article 10 of the revised draft (E/CH.4/WG.1/WP.1) was as follows:

"1. Each State Party shall ensure that education and information regard. ing the prohibition against torture are fully included in the training of law enforcement personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment.

2. Each State Party shall include this prohibition in the rules or instructions issued in regard to the duties and functions of any such persons."

52. It was proposed that, in paragraph 2, the words "give effect to" should be used in place of "include” in order to make the requirement more substantial. However, the view was expressed that the existing wording was more effective.

53. Article 10 of the revised draft was adopted by consensus without amendment.

ABTICLE 11 (ABTICLE 6 OF ORIGINAL DRAFT) 54. Article 11 of the revised draft (E/CN.4/WG.1/WP.1) was as follows: "Each State Party shall keep under systematic review interrogation methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture."

55. The issue was raised as to whether the phrase "territory under its jurisdiction" included occupied territories. It was agreed that the phrase had the same meaning as had earlier been agreed upon in connexion with article 2(1) of the revised draft.

56. An opinion was expressed that there were certain discrepancies between articles 10 and 11 which would require in the future some additional work of a drafting nature with regard to these texts.

57. It was agreed that article 11 should be amended to harmonize with article 10 by referring to "interrogation rules, instructions, methods and practices".

58. Article 11 was then adopted as follows: "Each State Party shall keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture."

59. Following the adoption of the rest of the report of the working group it was suggested that the group should make a recommendation to the Commission that the drafting of the convention against torture and other cruel, inhuman or degrading treatment or punishment should be continued by an inter-sessional working group established for the purpose before the thirty-sixth session of the Commission. However, no agreement was reached on the matter.

« ÎnapoiContinuați »