Country chapters: summaries from the research
The research includes 14 country chapters, which provide a detailed and nuanced account of the incidence of torture between 1985 and 2014 in the following countries:
- South Africa
- United Kingdom
These summaries have been provided by the individual researchers.
Karinna Fernandez (University of Essex) and Dr Par Engstrom (University College, London)
In Chile, torture constitutes one of the methods the state has used to address and manage political and social conflicts, especially when they involve challenges to the institutional order. As has been amply documented, during Chile’s military regime (1973-1990), severe torture practices were routinely and systematically used against regime opponents. Although the transition to democracy led to a notable decline in the incidence of torture, at the beginning of the democratic period, reports of torture were numerous, serious and frequent especially as torture was used against members of subversive groups, and to extract confessions from political prisoners. With the consolidation of Chile’s political democracy, the country experienced a reduction in torture complaints from prisons, but a continuation in the use of violence by the state in the Mapuche conflict in southern Chile, and in the repressive response of the police to social protest.
Torture prevention has never constituted a concerted policy of the Chilean state. Authorities have not prioritised the prosecution and punishment of torture practices. As a result, the Chilean criminal justice system notably lacks an adequate criminal category for torture offences. Allegations and investigations of torture incidents are classified as crimes such as torment, illegitimate punishment, mistreatment or unnecessary violence.
Nonetheless, reforms to the justice system over the last decade have had a significant impact on the legal protection afforded to detained individuals in particular. The various legal changes implemented by democratic governments (“Cumplido” Laws, Laws on the Rights of Detainees, Criminal Procedures Reform, among others) have improved legal guarantees of prisoners’ rights, especially with respect to the permitted period of detention in police centres before being brought before a judge (24 hours), though important restrictions on detainee rights persist through the Law on Drugs and the Anti-Terrorism Law. The existence of a reformed criminal justice system in Chile, which has since 2000 been characterised by its guarantees-based, oral nature, and which gave rise to new actors – prosecutors, public defenders and procedural guarantees judges – stands in stark contrast with a parallel system of military justice which is written and inquisitorial in nature. The military justice system retains the authority to investigate crimes committed by the armed forces and Carabineros against civilians.
Chile lacks adequate and autonomous mechanisms for torture reporting, as well as for monitoring detention centres and prisons. While the creation of the National Institute of Human Rights (NIHR) in 2010 has helped with the reporting and prosecution of torture incidents (and has even engaged in human rights training for police and Gendarmeries), this new institution does not fulfil the requirements set out in the Optional Protocol of the Convention against Torture regarding a National Preventive Mechanism for torture.
As a consequence of the inherent limitations of these reform processes, evidence strongly indicates that certain groups in Chilean society remain highly vulnerable to torture by state agents. This is the case for imprisoned and detained individuals, for members of some indigenous Mapuche communities involved in land conflicts, and for those who engage in social protests and who are confronted with violent police responses.
Yonas Mebrahtu and Dr Sam Ponniah (formerly University of Dire Dawa)
This chapter examines the law and practice of detention procedures, prosecution of torture perpetrators and ending impunity, and finally complaints and monitoring mechanisms. Extensive interviews were conducted with judges, prosecutors, lawyers, various NGOs, journalists, opposition political party members and survivors of torture in different parts of the country. Moreover, various reports from international and local NGOs were also analyzed.
The research has confirmed that, given the dictatorial nature of the Derg government in the 1980s and conflict and instability in the country, torture incidence was severe, frequent and widespread in the first five years of the study period. Impunity prevailed and Ethiopia was totally excluded from the international and regional human rights systems. Following the overthrow of the regime in 1991, however, the political and legal reforms declared by the transitional government of the EPRDF did not result in practical progress on torture. The conflict with dissident groups, ethnic tension and the purge of law enforcement organs in 1990s had a negative impact on human rights. Lack of professionalism among law enforcement organs, impunity and absence of monitoring and complaints mechanisms (both international and domestic) undermined the reforms. Torture remained severe and frequent, although less widespread than under the Derg.
In the 2000s, slight improvements registered in detention practice, particularly access to a court within 48 hours, which can be attributed to continuous training provided for law enforcement organs. Yet the effects of prosecution and complaints and monitoring mechanisms in torture prevention remained insignificant. The exclusion from international complaints and monitoring systems, coupled with the inefficiency of the national human rights institutions, thwarted the prevention process particularly when prisoners were politically affiliated.
The last five years of the study period revealed that torture remained severe and frequent though not geographically widespread, particularly in political and terrorist cases. Access to a lawyer, family notification and prompt access to court have been usually impractical. Yet marginal improvement exists in detention practice and complaints mechanisms for common crimes.
The incidence of torture has increased in frequency, severity and geographical coverage during major political episodes such as armed conflicts both internal and international, the 2005 national election and ethnic tensions.
Ethiopia. Photo: Andrew Heavens
Bakar Jikia (Penal Reform International) and Moris Shalikashvili (Ivane Javakhishvili Tbilisi State University)
Georgia represents a particularly interesting case when it comes to torture prevention for two basic reasons. First, the country went through a number of transformations during the research period from 1985 to 2014. These periods included Soviet rule in the 1980s, the post-Soviet chaos of early nineties, emerging but corrupt state institutions for the later part of the century, the tight grip of the United National Movement for nine years from 2004 to 2012 and the more human rights oriented approach of the new government which has yet to be properly tested. These changes not only affected the political landscape, but also directly influenced detention practices as well as the torture prevention situation in the country.
Second, the Georgian state experienced a number of internal and external threats, including a successful coup and a “peaceful revolution”, Russian-backed secessionist armed conflicts in breakaway regions and an outright war with Russia. Hence while reviewing areas related to the prevention of torture the chapter also factors in political developments which in a number of occasions had a direct effect on law enforcement practices in penitentiary and police custody.
Georgia also presents a very successful example of the impact of prevention measures in two separate sectors. Radical improvements in detention procedures in the 2000s resulted in a marked improvement of detainees in police custody. Later, after the torture problem had shifted into prisons, effective monitoring and consequent reforms led to an improvement there too.
Borbala Ivany, Andras Kadar, and Andras Nemes (Hungarian Helsinki Committee)
The Hungarian case exemplifies the powerful impact of the general political climate and expectations on torture prevention. In Hungary there is an interesting discrepancy between the steady development of the legal framework on the one hand and the trends in the frequency of ill-treatment.
This discrepancy can primarily be explained by the influence of the political context on the practice of the authorities. Due to the explosive increase in crime rates after the democratic transition, the undeniable improvements in the legal framework had a limited effect: the frequency of ill-treatment cases have been still relatively high. Only after the turbulence of the first transitional years subsided and a less restrictive criminal policy emerged with emphasis on safeguards, could the improved legal framework have an impact, resulting in a significant decrease in the number of torture complaints.
In Hungary, we have rarely seen that the laws are overtly amended to downgrade the degree of torture prevention. However, in some cases piecemeal legislative amendments bringing positive changes have been incapable of remedying the central problems of a certain area. However, from the period when the most emphasis was put on public order versus defence rights (i.e. in the post 2010 election era, when the number of ill-treatment complaints reached a new peak after the first years of the transition), we can even quote examples of amendments expressly aimed at weakening certain acknowledged torture prevention mechanisms.
The political will has been also manifested in political statements and in instructions given to the police leadership reducing the level of implementation of safeguards. The 2010 peak in the number of ill-treatment complaints seems to suggest that despite being able to rely on a relatively well developed and sophisticated legal framework containing important preventive elements, the Hungarian authorities had not become sufficiently immune in the over two decades of democracy to prevent them from changing their practices if there is a sudden and very strong political impulse pushing them into the direction of producing results – even at high prices.
Dr Amar Jesani (Indian Journal of Medical Ethics) and Dr Jinee Lokaneeta (Drew University)
India over the past three decades has been characterized by an almost complete lack of change in the (high) incidence of torture and ill-treatment and a marked gap between relatively well-developed legal protections for those in custody and the actual practice of the police and prison service.
The sheer size of the country makes it difficult to generalize. Torture has been worst in those areas affected by continuing conflict, including Jammu and Kashmir as well as those parts of the country afflicted by intermittent communal violence. However, it would be misleading to see torture as something only connected to political instability or conflict. Torture and other ill-treatment are endemic to the Indian criminal justice system. This partly reflects social phenomena such as the intensely hierarchical nature of Indian society and the systemic violence against women; it is also perpetuated by the lack of any reform of the colonial police force inherited at independence in 1947. The police behave almost like occupiers in their own country.
That said, despite a profusion of numbers, hard and accurate data on the incidence of torture are difficult to obtain. Numbers for deaths in custody – itself a massive social problem – generally function as a proxy for torture, the precise extent of which remains unknown. The country’s National Human Rights Commission has made attempts both to document and to address the torture issue, without significant result. A series of progressive decisions by the Indian Supreme Court are barely reflected in practice at the local level.
Dr Budi Hernawan (Universitas Indonesia) and Professor Chris Sidoti (independent researcher)
Indonesia is very large and very diverse. With 250 million people it is the fourth largest nation in the world by population, an archipelagic state whose large population is spread over 6000 inhabited islands stretching 5000km from east to west and 1800km from north to south. In such a nation the adoption of any policy is a very different matter from its implementation. So it is with preventing torture. Even with the strongest possible determination, preventing torture in Indonesia will be a very challenging task. Certainly the task is well underway and there has been progress but there is still much to be done.
For Indonesia the period of the last 30 years falls neatly into two almost equal parts: the authoritarian New Order period, beginning in 1965 and lasting until the popular uprising in 1998, and the post reformasi period that began that year and continues. During the New Order period torture was widespread, routine and severe. Improvement did not come immediately the New Order regime was overthrown but gradually as two longstanding internal conflicts, in Timor Leste and Aceh, were resolved and a third, in Papua, was reduced in intensity. The combination of greater transparency and public accountability, principally through the work of civil society, and less violent conflict brought significant change. It reduced both the incidence of torture and its severity overall.
However, the end of the New Order did not bring the end of torture. The system itself did not change sufficiently to achieve that. It retains inadequate laws, inadequate law enforcement, inadequate justice, inadequate leadership, inadequate training, inadequate accountability, inadequate procedures and inadequate transparency.
This chapter reviews torture prevention in Indonesia through the context, the history, the present state of Indonesian law and procedure, the practice of military and police and the international and national mechanisms for monitoring and investigation of alleged violations. It points to ways ahead so that action to prevent torture is strategically planned and implemented rather than being ad hoc or accidental. The prevention of torture in Indonesia is difficult but it is not impossible.
Indonesia. Photo: UNAMID
Irit Ballas (Public Committee Against Torture in Israel)
Torture by Israeli authorities in Israel and the Occupied Palestinian Territories (OPT), have undergone dramatic changes. These are usually attributed to the controversial High Court of Justice (HCJ) ruling of 1999, which outlawed methods of torture while at the same time facilitating their legalization. After the Court's decision, the use of severe torture practices was dramatically reduced, but torture still persists, with the backing from legal and political echelons.
The chapter examines these significant changes in torture practices in light of the development and implementation of torture prevention mechanisms, and their possible correlation with both the quantity and the severity of torture practices. A careful examination of these mechanisms shows that in the 1990s Israel saw major developments in the quality and quantity of mechanisms designed to increase oversight over those who control people under custody. Such developments include, among other things, the establishment of the Public Defender's Office, the new Detention Law, and the establishment of an independent Police Investigation Department.
However, a closer look at these mechanisms reveals a recurrent theme: while offering fairly well-functioning mechanisms for ensuring the well-being of prisoners, they are designed in a way that impedes their effectiveness in the most systematic and severe instances of torture. This is achieved inter alia by limiting the scope of the law, by excluding susceptible facilities from the mandate of these mechanisms, and by creating an institutional barrier to prosecution.
One example concerns judicial oversight over arrests. The 1996 Detention Law incorporates major changes regarding legal oversight over arrests, including being brought promptly before a judge. However, the law applies only to ordinary detainees; “security” detainees are arrested under a regime of exception which allows prolonged periods of arrest before judicial review. Moreover, many Palestinian detainees fall under the scope of the military law, another form of exception, which allows even longer periods of time to pass. Thus, judicial oversight over detention is the weakest where it is most required.
Aida Baijumanova (American University of Central Asia), Moritz Birk (Ludwig Boltzmann Institute, University of Vienna), and Lira Ismailova
Torture has always been a concern in Kyrgyzstan and is today acknowledged to be a widespread and routine practice in the criminal justice system. The situation has become particularly worrisome in the years following independence, which were marked by an economic decline, an increase in criminality and the emigration of experienced investigators. While the prescribed performance goals of resolved cases for police officers remained, internal control and oversight decreased and inadequately skilled investigators increasingly resorted to violence to obtain confessions. The problem has received particular attention after the violent ethnic clashes in June 2010 and the ensuing systematic torture committed by security officials.
The Kyrgyz Republic has carried out numerous legal reforms criminalising torture and strengthening procedural safeguards, such as the notification of family members or the prompt access to a lawyer, a judge and a medical exam. However, the legal reforms have not yielded the necessary results. This is attributed on the one hand to an insufficient regulation specifying the access to and functioning of the safeguards. A particular problem is the absence of a definition of factual detention, leaving it unclear from which moment a safeguard must be granted. In consequence, unofficial detention is widespread and most cases of torture happen before the official registration of the detainee. On the other hand, the responsible stakeholders such as lawyers, judges and doctors often lack independence from the law enforcement authorities and have insufficient capacities, personally as well as institutionally, to fulfil the required functions.
This situation is facilitated by a lack of oversight and accountability. Despite the criminalisation of torture since 2003, there have been almost no convictions due to the lack of an independent and effective investigation mechanism and a judiciary that is not responsive to torture allegations. The slow reform efforts and total absence of accountability for torture and ill-treatment committed after the June 2010 events put into question the willingness of the government to fight impunity.
The serious efforts taken over the last years to establish a system of independent and systematic monitoring have also not yet led to an improvement of the situation. Instead the independence of the Ombuds institution and newly established national preventive mechanism is being increasingly threatened. Also, they have so far been lacking effectiveness and have greatly relied on NGO support. While the strengthening of the monitoring system bears hope for improvements, this will not be achievable without further legal and institutional reforms and a genuine commitment to investigate all torture cases and bring perpetrators to justice.
Kyrgyzstan. Photo: Etienne Combier
Nataly Herrera (independent researcher) and Dr Tom Pegram (University College, London)
This in-depth study of prevalence and prevention of torture in Peru offers a factually rich account of torture incidence (frequency, severity and geographical distribution) over the period 1985-2014. It examines a number of core dimensions of analysis, including the law and practice of detention, prosecution of torture accusations, and torture complaint mechanisms and monitoring practices. Drawing on a wide range of primary source materials, the study demonstrates that the practice of torture was and continues to be widely employed throughout Peru over this 30-year period. Torture today represents the most serious and most widespread violation of human rights violation in the country.
The study documents several different stages evident in Peru's recent history that are pertinent to explaining the evolution of torture practices. Particular attention is paid to the impact of the brutal internal armed conflict that afflicted the country from 1980 to 2000. However, careful attention is also paid to analytically distinguishing the violation of torture as a historically rooted practice distinct to the massive human rights violations experienced in the context of conflict. The return to democracy in 2000 foregrounded a process of significant institutional and rule of law renovation. However, as this study examines, this did not mean the end of abuses of torture; but rather a change in the profile of victims, the methods used and the circumstances in which they occurred. The police emerge as a nerve centre for prevention failures. Similarly, a deeply dysfunctional judicial, prosecutorial and penal system constituted serious structural failures which continue to place in jeopardy prevention of torture and the rigts of victims in Peru.
One bright spot of functionality within Peru's flawed domestic human rights framework is the office of the human rights ombudsman which has been recently officially designated the national preventive mechanism under the Optional Protocol to the Convention Against Torture. However, as this study makes clear, it is important to calibrate expectations placed on torture prevention mechanisms in light of operational conditions.
Ricardo Sunga III (University of the Philippines)
What is the relation between Philippine anti-torture laws, and the incidence of torture in the Philippines? To what extent have measures adopted to curb torture succeeded in their aims? These are the questions that my research sought to answer.
This chapter critically examines the Philippine experience of torture from 1985 up to 2013. It considers the high incidence of torture for the entirety of this period under review. Torture was at its peak at the beginning of the period, at the tail end of the regime of President Ferdinand Marcos who had declared martial law and used torture as a weapon against his opponents. Torture decreased slightly following the end of the Marcos regime, though its frequency, severity and geographical spread remained high.
This chapter also explores Philippine law and practice relating to detention, and takes into account the advances in the law, culminating in the passage of a Philippine Anti-Torture Act in 2009. The chapter also considers the Philippine record in the prosecution of torture cases, both prior to the passage of the Philippine Anti-Torture Act, and subsequent to it. Before the passage of this law, there were convictions of torture perpetrators for a range of offences from murder to coercion. Subsequently, some charges have been filed for violations of the Philippine Anti-Torture Act of 2009, though there have been no convictions thus far.
The chapter also considers the growing potential of the Philippine Commission on Human Rights, established in 1987 by the Philippine Constitution, as an independent complaints and monitoring mechanism, equipped with the power to investigate complaints of torture and to visit places of detention.
The people of the Philippines have an expression: doble kara. It means ‘of two faces.’ This is a rather accurate description of the state of torture prevention in the country, where law and practice remain highly divergent.
Gwénaëlle Dereymaeker and Dr Lukas Muntingh (University of the Western Cape)
Emerging from apartheid in 1990, South Africa embarked on an extensive law reform programme after the first democratic elections some four years later. The brutality of the apartheid regime was still fresh in the collective memory. The last years of apartheid saw a national state of emergency in place which granted the security forces unfettered powers with little oversight, resulting in the widespread use of torture and excessive force. Incommunicado detention and fatalities were common amongst those arrested for their opposition to the regime. The use of excessive force was also frequent in respect of common law suspects and prisoners, due to a criminal justice system driven by confessions and courts that were not questioning the origin of evidence.
After 1994, there were high expectations that the country would be a torch bearer in establishing a society characterised by its liberal constitution and Bill of Rights. The new South Africa would visibly be the antithesis of its predecessor. The first ten years of democracy saw rapid advances being made to dismantle the legal and institutional frameworks created under white minority rule. The Constitution afforded extensive rights and obliged the State to create a range of institutions to promote and protect democracy. This saw the creation of designated oversight institutions for the police and prison system. The first decade of democracy thus saw substantive structural advances being made to address torture and other ill treatment.
All the available evidence shows, however, that a gradual reverse took place approximately from 2005, and has resulted in an increase in the use of force by law enforcement and ultimately in the incidence of torture. This is attributed to a de facto situation of impunity created by a range of functional factors. Key amongst these are: poor political leadership and an increasing allergic reaction by the State to any form of accountability; the politicisation of key institutions (e.g. police and National Prosecuting Authority); a misdirected strategy to deal with high violent crime rate supported by provocative rhetoric from political leaders; poor training and weak enforcement of discipline in the police and prison system, and the lack of prosecutions against law enforcement officials for rights violations. The incidence of torture must furthermore be seen against the background that South Africa is a violent society. The South African case study clearly demonstrates the limits of law reform as a mechanism to reduce the incidence of torture and other ill treatment, and the relevance of broader societal and political factors in such incidence.
South Africa. Photo: Bistandsaktuelt
Dr Fatma Raach (Faculté de droit et des sciences politiques de Tunis)
Preparing this study about the evolution of the prevention of torture in Tunisia during thirty years, could not be possible if Tunisian people had not decided to break the silence and to start a new era. Torture still exists in Tunisia, but the response to it has changed. During the long period of dictatorship, authorities used to adopt legal reform, to satisfy the international community, in all sectors including detention and prosecution law. Monitoring and complaint mechanisms were established and international agreements were ratified. But torture still occurred. The legal aspect was not a determinant factor of prevention from torture. The practice was a determinant one. The legal provisions in matter of detention law and prosecution contained important gaps like the absence of prompt presentation before a judge and the prompt access to lawyer, but the crucial point was the failure to comply even with those protections that existed.
In Tunisia, the evolution of the legal framework and the preventive mechanisms was done gradually. The lack of independence and power of the monitoring mechanisms have an important effect on the occurrence of torture. In addition, the weakness and lack of independence of the judiciary placed prisoners in a vulnerable position. It reinforced impunity and encouraged torturers to continue. After the uprising for democracy, authorities changed their attitude, many reform projects were set up and a national authority for prevention of torture was established. Tunisians are waiting for real change, with optimism but also scepticism. The struggle for the end of impunity and for the eradication of torture continues.
Dr Kerem Altiparmak (University of Ankara), Dr Richard Carver and Dr Lisa Handley (Oxford Brookes University)
Turkey provides a particularly interesting case study of the interplay between political factors and torture prevention. A declining incidence of torture over the 30-year study period was clearly influenced by a series of political factors: the decline in Kemalist secularism, the ebb and flow of the Kurdish political struggle, and Turkish aspirations to membership of the European Union.
The incidence of torture in both political and non-political cases was extremely high in the 1980s and 1990s. By around the turn of the century, however, the confluence of the three political factors led to a series of procedural reforms – notably a significant improvement in the provision of safeguards in the early days in custody. Torture incidence showed a steady decline through the 2000s, although ill-treatment of protesters began to rise again towards the end of the study period, as informal public dissent became more widespread. It has risen again since the conclusion of our research, with national security justifications once more being mobilized to justify harsh measures.
Turkey also provides a clear case study of the voluntary submission of a state to a regional human rights mechanism. It has been the subject of almost annual visits from the European Committee for the Prevention of Torture since the early 1990s, as well as receiving large numbers of adverse judgments from the European Court of Human Rights. Although the Turkish state has been slow to comply with ECHR judgments, these in particular seem to have played an important part in establishing the political unacceptability of continuing torture.
Dr Richard Carver (Oxford Brookes University)
The United Kingdom made substantial progress in reducing the incidence of torture over the 30 years of this study. In the 1970s and 1980s, the security forces in Northern Ireland were often responsible for serious ill-treatment and torture, culminating in a celebrated finding against the UK in the European Court of Human Rights. In England, police ill-treatment had led to serious miscarriages of justice based upon false confessions, some, but not all, of which were related to the Irish conflict.
In the early to mid-1980s, a number of preventive measures were introduced: the Police and Criminal Evidence Act (PACE), which greatly improved the protections for criminal suspects after arrest, a new independent prosecution authority, and an independent prisons inspectorate. The procedural improvements in the PACE showed immediate benefits in England and Wales.
Application of the PACE in Northern Ireland also contributed to a reduction in ill-treatment, but it was the conclusion of a lasting peace to the civil conflict under the 1998 Belfast Agreement that saw a decisive end to torture and ill-treatment. Police reform was integral to the political settlement, with the old Royal Ulster Constabulary replaced by a new police service acceptable to the entire community. A new oversight body, the Police Ombudsman, also proved an effective means of investigating allegations of ill-treatment.
When torture persisted, it was in situations that fell outside the purview of any of these preventive mechanisms, as for example during the British occupation of southern Iraq in the mid-2000s.
United Kingdom. Photo: Joshua Hayes