E/CN.4/2006/6
page 2
Summary
The Special Rapporteur on torture, Manfred Nowak, submits his first report to the
Commission. Section I summarizes the activities of the Special Rapporteur in 2005, with
a particular focus on the period since the submission of his interim report to the
General Assembly. In section II, the Special Rapporteur discusses the methods of work
related to country visits, particularly the terms of reference for fact-finding missions. He
examines the implications of these conditions, specifically with respect to visiting places of
detention. According to the Special Rapporteur, the terms of reference are fundamental,
common-sense considerations that are essential to ensure an objective, impartial and independent
assessment of torture and ill-treatment during country visits. Section III contains a report on
recent activities and developments related to diplomatic assurances. The Special Rapporteur
draws attention to the importance of maintaining the focus and remaining vigilant on practices
such as the use of diplomatic assurances, which attempt to erode the absolute prohibition on
torture in the context of counter-terrorism measures. He reiterates that diplomatic assurances are
not legally binding and undermine existing obligations of States to prohibit torture, are
ineffective and unreliable in ensuring the protection of returned persons, and therefore shall not
be resorted to by States. Section IV examines the distinction between torture and cruel, inhuman
or degrading treatment or punishment. He concludes that the distinction relates primarily to the
question of personal liberty. Outside a situation where one person is under the total control of
another - i.e. where a person is rendered powerless - the proportionality principle is a
precondition for assessing the scope of application of the prohibition of cruel, inhuman or
degrading treatment or punishment. In all other cases, and in particular in situations of
interrogation, no proportionality test may be applied and the prohibition of torture and cruel,
inhuman or degrading treatment or punishment is equally as absolute as the prohibition of
torture.
The summary of communications sent by the Special Rapporteur from 1 December 2004
to 15 December 2005 and the replies received thereto from Governments by 31 December 2005,
as well as a number of country-specific observations, are found in addendum 1 to the report. The
summary of the information provided by Governments and non-governmental organizations on
the implementation of the Special Rapporteur’s recommendations following country visits is
found in addendum 2. Addendums 3 to 6 are the reports on the country visits to Georgia,
Mongolia, Nepal and China, respectively. Document E/CN.4/2006/120 contains the joint report
prepared with the Special Rapporteurs on the right of everyone to the highest attainable standard
of physical and mental health, the independence of judges and lawyers, and freedom of religion
or belief, and the Chairperson of the Working Group on Arbitrary Detention concerning the
human rights situation of detainees held at the United States of America Naval Base at
Guantánamo Bay, Cuba.