page 1 The role of judges and prosecutors in combatting torture and other ill-treatment in the MENA region Saïd Benarbia Director of the Middle East and North Africa programme, International Commission of Jurists An independent and impartial judiciary and prosecutorial authority are crucial to ensuring the effective enforcement of the absolute prohibition of torture and other cruel, inhuman or degrading treatment or punishment. However, in most of the Middle East and North Africa (MENA) region, judges and prosecutors have systematically failed to ensure that cases of torture and other ill-treatment are effectively investigated, prosecuted and punished. This article highlights certain aspects of this failure, including by referring to a limited number of examples from MENA countries for illustrative purposes. This Article does not provide a comprehensive review of the matter. In most MENA countries, detainees are rarely provided with adequate guarantees against torture and other ill-treatment, including the right to legal counsel from the moment of arrest and the right to challenge the lawfulness of detention. Many detainees are subject to prolonged incommunicado detention and sometimes to prolonged solitary confinement, both of which can amount to torture or other ill-treatment. In situations where the fact and/or location of the detention is undisclosed, the situation may amount to an instance of enforced disappearance, which is a crime under international law. Allegations of torture and other ill-treatment made by detainees are rarely investigated. Those responsible are almost never held to account, criminally or civilly, and victims’ rights to effective remedies and to reparation continue to be largely denied. Further, where a detainee alleges, or where there are otherwise reasonable grounds to believe that he or she has been subjected to torture and other ill-treatment, the authorities generally will not provide independent medical examinations conforming to international standards, including those set out in the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Istanbul Protocol). In addition, “confessions” obtained as a result of torture or other ill-treatment are regularly admitted as evidence by courts. Before such evidence is admitted, courts generally fail to require prosecution services to prove beyond reasonable doubt that the “confessions” were obtained by lawful means and voluntarily from the accused. For MENA countries to meet their obligations under international law, including the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the International Covenant on Civil and Political Rights (ICCPR), to prevent, investigate, prosecute and punish acts of torture and other ill-treatment, they should end policies and practices of secret detention and prolonged incommunicado and other arbitrary detention, which are common in the region. In Syria, the use of secret and prolonged incommunicado detention has been widespread and systematic, and includes holding detainees in unofficial and secret places of detention and denying their right to contact family members and to have access to legal counsel and to a court. In Libya, unofficial detention facilities continue to operate under the effective control of armed groups and outside any rule of law framework. Acts of torture and other ill-treatment are widespread in these facilities. Detention in these facilities might amount to an instance of enforced disappearance. The Working Group on Arbitrary Detention has stressed that “secret and/or incommunicado detention constitutes the most heinous violation of the norm protecting the right to liberty of human being under customary international law. The arbitrariness is inherent in these forms of deprivation of liberty as the individual is left outside the cloak of any legal protection.” [§60 of the Working Group on This article was originally published in the Middle & East-North Africa e-bulletin N°6 of summer 2014, published by the Association for the Prevention of Torture (APT). The article reflects the view of the author alone and not necessarily those of the APT. For a full archive of MENA e-bulletins see mena-e-bulletin/ The Middle East and North Africa: A Torture-Free Zone

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