PROHIBITION
ARTICLES:
2
3
4
15
Torture is a jus cogens norm, and absolutely prohibited under customary international law. The UN Convention
against Torture clarifies that there are no circumstances that justify its use: Neither war, threat of war, internal
political instability nor any other public emergency may be invoked to justify torture (Art. 2.2). Orders by superior
officers do not excuse torture (Art. 2.3), and all have a duty to stand up against such demands.
The large majority of countries worldwide prohibit the use of torture
in their national constitutions or contain provisions in specific
human rights and/or criminal legislation. Such provisions observe the
Convention requirement that acts of torture are to be offences under
national law, and punishable by an appropriate penalty which takes
into account the grave nature of this offence (Art. 4). Such offences
are not to be limited by a statute of limitations, nor are amnesties
acceptable.
Executive, legislative and judicial branches of government all
play their part in prohibiting torture and ill-treatment. New or
reformed institutional, policy, legislative and practical approaches
to prohibiting torture and ill-treatment may be considered. The
prosecution service and courts have a particular role to play, for
example, in de-incentivising the practice of torture, in particular by
adopting or following rules and procedures that safeguard against:
See, APT-CTI’s Guide on
Anti-Torture Legislation
Guide on anti-torture legislation
See, CTI’s UNCAT
Implementation Tool
on Non-Refoulement
Procedures and Safeguards
T O O L
UNCAT Implementation Tool 4/2018
NON‑REFOULEMENT PROCEDURES
AND SAFEGUARDS
The absolute prohibition against refoulement set out
in Article 3(1) of the UN Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment
or Punishment (Convention, or UNCAT) – namely the
prohibition against the transfer of any person to a place
where they would face a real risk of torture or other
cruel, inhuman or degrading treatment or punishment
(hereafter “torture or other ill-treatment”) – is a
fundamental feature of the global torture prevention
architecture. This tool includes some examples of the
range of legal and practical procedures and safeguards
that States have developed to give it effect.
CONSTITUTIONAL
PROVISIONS
The prohibition against refoulement is widely recognised
in constitutional texts and/or legislation. Some States’
constitutions enshrine the prohibition against refoulement
explicitly; in others, constitutional provisions, stipulating
that binding international treaties (e.g., UNCAT) prevail
over contrary domestic law, have given effect to the
prohibition against refoulement. The courts of some States
have also confirmed the latter.
Article 3, UNCAT
1. No State Party shall expel, return
(“refouler”) or extradite a person to another
State where there are substantial grounds
for believing that he [or she] would be in
danger of being subjected to torture.
2. For the purpose of determining whether
there are such grounds, the competent
authorities shall take into account all
relevant considerations including, where
applicable, the existence in the State
concerned of a consistent pattern of gross,
flagrant or mass violations of human rights.
“
It is insufficient merely to intervene
after the infliction of torture, when
the physical or moral integrity of
human beings has already been
irremediably harmed. States are
bound to put in place all those
measures that may pre‑empt the
perpetration of torture.”
Prosecutor v. Anto Furundzija,
No. IT-95-17/1-T, Judgment of the
International Criminal Tribunal for
former Yugoslavia, 10 December 1998,
para. 148
The CTI ‘UNCAT Implementation Tools’ are a series of practical tools designed to share good practices among States on the
implementation of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT).
They offer thematic guidance and ideas for State practitioners and policymakers as they develop or revise context-specific strategies,
mechanisms and procedures to prevent torture and other forms of ill-treatment or punishment, and provide remedies for victims.
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• the admission of evidence extracted by torture in all proceedings
(Art 15);
• the expulsion, return (refouler) or extradition of anyone to another
State where they may be at risk of torture (Art. 3).
PREVENTION
ARTICLES:
2
16
An overarching and continuous obligation of UNCAT is that each State party “shall take effective legislative,
administrative, judicial or other measures to prevent acts of torture” (Art. 2.1).
Legislative
Administrative
The Convention does not prescribe
preventive measures, rather it
recognises that there are many
different approaches to prevention and
gives flexibility so that such measures
can be tailored to national contexts. It is
not expected that a State has a perfect
record ahead of ratification; what is
important is that a State commits to
reviewing and improving existing rules,
standards, practices and procedures.
Judicial
T O O L
CTI/UNCAT Implementation Tool 1/2017
STATE STRATEGIES TO PREVENT AND
RESPOND TO TORTURE AND OTHER
ILL-TREATMENT OR PUNISHMENT
Putting in place measures to prevent and eradicate torture and other ill-treatment in all its forms, and which
provide redress for victims, takes time. Ratifying the UN Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment (UNCAT) is just the start of a process of ongoing implementation
and improvement leading to more efficient and fairer administration of justice, improved rule of law and
governance, strengthened independence of the judiciary, and a safer and freer society. Because UNCAT does
not prescribe how its various articles are to be implemented, each State party is free to develop laws, policies,
practices and mechanisms that reflect and respond to their own unique national context and character.
Preparing a strategy (or action plan) can help to identify and plan the specific short-, mid- and long-term steps
proposed to prevent torture and other ill-treatment or punishment.
Strategies aimed at torture prevention have sometimes been developed during reform initiatives, or in
response to a particular incident that exposed some weakness in policy or practice, or to effect positive change
during a period of transition. Even in the absence of such triggers, torture prevention strategies have been put
in place to strengthen the rule of law and protection for individuals and to develop good relations between
citizens and the State authorities.
Different approaches to strategies have been adopted by States. Some States have developed national torture
prevention strategies either as a specific strategy or as part of a broader human rights national action plan.
Others have subsumed elements relating to torture prevention within national development plans, including
in relation to implementing the Sustainable Development Goals (SDGs). In federal or other decentralised
States, strategies may be developed at a federal level and/or at the sub-national levels. Also at a practical level,
operational plans of specific departments or services have incorporated torture prevention objectives and
targeted actions. These approaches help prevent torture and ill-treatment or punishment. For the purposes of
this tool, they are referred to as “torture prevention strategies”.
NATIONAL
TORTURE
PREVENTION
STRATEGY
NATIONAL
HUMAN RIGHTS
ACTION PLAN
NATIONAL
DEVELOPMENT
PLAN
AGENCY
OPERATIONAL
PLANS
The CTI ‘UNCAT Implementation Tools’ are a series of practical tools designed to share good practices among States on the
implementation of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT).
They offer thematic guidance and ideas for State practitioners and policy-makers as they develop or revise context-specific strategies,
mechanisms and procedures to prevent torture and other forms of ill-treatment or punishment, and provide remedies for victims.
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See, CTI’s
UNCAT
Implementation
Tool on
Developing
anti-torture
strategies and
action plans
UN CONVENTION AGAINST TORTURE IN BRIEF
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Other measures
See, CTI’s UNCAT
Implementation
Tool on
Safeguards in
the first hours of
police custody
T O O L
UNCAT Implementation Tool 2/2017
SAFEGUARDS IN THE FIRST HOURS
OF POLICE DETENTION
Safeguards against torture and other forms of ill-treatment are rules and procedures that guide authorities to
protect persons in police detention. Safeguards are practical and cost-efficient solutions to prevent abuse in
custodial settings, where the risk of torture and other ill-treatment is highest.
This implementation tool describes how safeguards against torture in the first hours of police detention may
be used to help States parties to the United Nations Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment (UNCAT) fulfil their obligations. While safeguards themselves are
not typically strict Convention obligations, they are practical solutions to challenges faced in the prevention
of torture and other ill-treatment during police detention. As such, safeguards help States fulfil various
international law obligations, including those described in articles 2, 11 and 16 of UNCAT, among others.
To be an effective protection against torture, each
safeguard must be implemented in a way that addresses
the particular risks of abuse in any particular country.
This tool provides examples to inspire good practices in
implementation and to help States recognise any “gaps” in
protection that still need to be addressed.
While the safeguards presented in this tool are effective
in protecting many persons in police detention, extra
measures may be necessary for persons with vulnerabilities
or who are at heightened risk, including children, women,
persons with disabilities, LGBTI, or any other reasons that
make persons in police detention particularly vulnerable.
States should consider whether and which extra measures
are needed to address particular vulnerabilities or risks.
“
It is well-known that the risk of torture
and other ill-treatment is significantly
greater during the first hours of police
custody. To prevent torture during this
heightened period of risk, safeguards
must be put in place and implemented in
practice…We call on every State to invest
in safeguards to prevent torture and
other forms of ill-treatment.”
Joint statement in 2017 by UN Special
Rapporteur on torture, Mr. Nils Melzer and
three former Special Rapporteurs on torture,
Mr. Juan Méndez, Mr. Manfred Nowak, and
Mr. Theo van Boven.
The CTI ‘UNCAT Implementation Tools’ are a series of practical tools designed to share good practices among States on the
implementation of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT).
They offer thematic guidance and ideas for State practitioners and policymakers as they develop or revise context-specific strategies,
mechanisms and procedures to prevent torture and other forms of ill-treatment or punishment, and provide remedies for victims.
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