A/HRC/46/26/Add.1
8.
The Special Rapporteur welcomes the declaration made by Maldives shortly after his
visit, on 26 December 2019, accepting the individual complaints procedure under article 22
of the Convention against Torture. He encourages the Government to ratify the Second
Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the
abolition of the death penalty, and to accede to the International Convention on the Protection
of the Rights of All Migrant Workers and Members of Their Families.
B.
National legislation
9.
The Constitution of Maldives (2008), the Anti-Torture Act (2013), the Penal Code
(2014) and the Prisons and Parole Act (2013) provide the most important legal norms for the
prevention, investigation and punishment of torture and other cruel, inhuman or degrading
treatment or punishment and for the exclusion of evidence obtained under torture.
10.
Article 54 of the Constitution guarantees the right not to be subjected to cruel,
inhuman or degrading treatment or punishment, or to torture. Article 57 guarantees humane
treatment for and recognizes the inherent dignity of everyone deprived of liberty through
arrest or detention as provided by law, pursuant to an order of the court, or in State care.
11.
Section 10 of the Anti-Torture Act criminalizes torture separately from regular assault
and battery. The definition covers all the elements of torture defined in the Convention
against Torture. The Act contains non-exhaustive lists of acts that constitute physical torture
(sect. 13 (b)) and psychological torture (sect. 14 (b)).
12.
The Prisons and Parole Act outlaws torture by prison officers under sections 26 (b)
and 32 (1) as a disciplinary offence; disciplinary action (warning, suspension or dismissal)
may be taken under section 23 of the Anti-Torture Act. The Special Rapporteur is concerned
that the penalties are not commensurate with the gravity of the crime and therefore fall short
of the State’s obligations to prevent and prosecute acts of torture and ill-treatment under the
Convention against Torture.1
13.
Furthermore, amendments to the Prisons and Parole Act make daily access to fresh
air for high-security prisoners subject to the discretion of the prison authorities. That
undermines the guarantees provided in section 47 (a) and (b), according to which, other than
their right to liberty, detainees cannot be deprived of any fundamental rights, such as the
prohibition of ill-treatment.
14.
Article 255 (b) (10) of the Constitution stipulates that measures adopted during a state
of emergency shall not restrict the right not to be subjected to torture under article 54.
Similarly, section 16 of the Anti-Torture Act stipulates that a state of war, political unrest, an
increased rate of crime or a state of emergency cannot excuse or justify acts of torture, cruel,
inhuman or degrading treatment or punishment.
15.
The laws still fall short of an absolute prohibition of torture. The Special Rapporteur
notes with serious concern that the Penal Code provides in chapter 40 for a range of
protections that have the potential to justify conduct that may constitute an act of torture when
it is considered a “lesser evil” (sect. 41); when executing public duty (sect. 42); when
executing law enforcement authority (sect. 43); and in the case of the defence of a person
(sect. 45) or property (sect. 46). Those provisions could be used to legitimize torture in
contravention of article 2 (2) of the Convention against Torture, which provides that 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. Furthermore, the statute of limitation under the Criminal Procedure Code (2016) also
applies to cases of torture and other ill-treatment and, thus, could be used to prevent the
prosecution of such abuse.
16.
While welcoming the clarification provided on penalties for torture
(CAT/C/MDV/CO/1/Add.1, paras. 73–79), the Special Rapporteur calls for the review of
1
See Urra Guridi v. Spain (CAT/C/34/D/212/2002).
3