Torture and ill-treatment

Torture is a grave crime against human dignity, and it can never be accepted. Even in situation of war, emergency or other threats to the stability of a State, torture and ill-treatment are always prohibited. The prohibition of torture is absolute and non-derogable at all times.
Torture and ill-treatment can take many forms: they can be physical or psychological and can result both from intentional acts (threats, beatings, rape, etc.) and omissions (such as the failure to provide a detainee with food or water). Treating a detainee humanely and with respect cannot be dependent on the material resources available in the State party.

States have a positive obligation to adequately secure the physical and psychological integrity and the well-being of all detainees. This responsibility includes a duty of care and the adoption of preventive measures to protect the most vulnerable detainees, as well as to reduce the risk of violence by other inmates. 

In some prisons, there is a trend to outsource logistics, services and operations to private companies. Outsourcing can concern various areas, from catering, prison shops, work, to detainees’ transfers and custody services. In some contexts, prisons may be entirely run by private companies. Whatever the sector and degree of privatisation of prisons, the State remains fully accountable in case of a violation of the prohibition of torture and ill-treatment.

Defining torture

According to the UN Convention against Torture, the definition of torture contains three main elements: (1) an “act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person” , (2) “for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind” and (3) “inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity”.

Some acts alone are recognised to be torture by the jurisprudence: they include, without being exhaustive, waterboarding; “falanga” (beating on the sole of the feet); the so-called “Palestinian hanging” (suspension by the arms with the arms tied together behind the back) and rape. 

Torture and ill-treatment are notions that evolve over time: a treatment that was once considered to amount to cruel or inhuman treatment can be re-qualified as torture. Additionally, other criteria, such as the vulnerability of the person, the environment, as well as the cumulative effect of various factors must be taken into account to determine whether a particular case amounts to ill-treatment or torture.

Defining cruel, inhuman or degrading treatment or punishment

Unlike torture, cruel, inhuman or degrading treatment or punishment are not defined in any international treaty. International tribunals and treaty bodies therefore attempted to clarify the concept. First of all, the notions of “cruel” and “inhuman” are synonymous and used interchangeably. Under international human rights law, cruel or inhuman treatment must cause mental or physical suffering of a serious nature, intentionally or negligently, and a public official must be implicated directly or indirectly. The purposive element is not necessary for an act to qualify as cruel or inhumane. It may be committed in one single act/omission or can result from an accumulation of several acts/omissions. Single acts that may not constitute ill-treatment individually could constitute cruel or inhumane treatment or punishment in conjunction with others.

Cruel or inhuman treatments can be: pain and suffering experienced by family members of a victim of enforced disappearance; denial or misuse of medical treatment; improper conditions of detention; intentional use of physical force, etc.

Degrading treatments are different from the notions of cruel or inhuman treatment or punishment. What is essential in the concept of degrading treatment is not the severity of the pain but the aim to humiliate or debase the person.

Degrading treatment can be: grossly humiliating an individual before others; not allowing a prisoner to change his/her soiled clothes; inappropriate conditions of confinement, etc.

Throughout the database, the terms “ill-treatment” and “cruel, inhuman or degrading treatment” are used interchangeably. 

States’ key obligations under the UN Convention against Torture

States must take effective legislative, administrative, judicial or other measures to prevent torture (article 2). To this end, it is particularly important that effective procedures and safeguards are in place in prisons. Key safeguards include prompt access to a lawyer, access to a doctor, access to a judge, the right to information, complaints procedures, well-kept registers and effective monitoring mechanisms.

State must ensure that education and information regarding the prohibition against torture are fully included in the training of law enforcement personnel, medical personnel, and other persons who may be involved in the custody, interrogation or treatment detainees (article 10).

States must make torture an offence under national law (article 4). The crime must be in full compliance with article 1 of the UN Convention against Torture. Criminalisation of torture alone is not sufficient and States must either prosecute or extradite an alleged offender if he/she is present in its jurisdiction (article 5.2). However, it is prohibited to transfer a person to another State if a real risk exists that he/she will be subjected to torture (article 3).

States must keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of detainees (Article 11)

States must make sure that allegations of torture and other forms of ill-treatment are investigated, even in the absence of a complaint from the victims. It is crucial that investigations be independent, prompt, thorough, and effective (article 12).

Any statement taken by coercion must be rejected in any proceedings, except against a person accused of torture as evidence that the statement was made (article 15). Case-law has clarified that when an allegation is made that a statement was given under duress, it is the responsibility of the State to prove that the statement was not coerced and given freely.

States must adopt legislation to provide victims with effective remedy and the right to obtain adequate and appropriate redress. A range of criminal, civil and/or procedural remedies should be made available by the State, and not just as a civil complaint against the perpetrator, and be effective in practice (article 14)

Examples of situations that can amount to torture and  ill-treatment under certain circumstances

Solitary confinement: prolonged solitary confinement, particularly in conjunction with poor material conditions (such as lack of ventilation, size of the cell, or lack of privacy), could amount to ill-treatment or even torture.  

Overcrowding: situations of overcrowding, in conjunction with poor material conditions and/or inappropriate medical care could amount to ill-treatment or even torture. 

Incommunicado detention:  Incommunicado detention is generally understood as a situation of detention in which an individual cannot notify his/her detention to family members, an attorney, or an independent physician. While there is no prohibition under international law of incommunicado detention per se, there is significant consensus that it can give rise to serious human rights violations and should thus be prohibited. It is recommended that family members should be notified at the latest 18 hours after a relative’s deprivation of liberty.

Body searches: due to their intrusive nature, all body searches can be degrading, even humiliating. They are permitted as long as they are strictly necessary to order or maintain security in a prison and when they respect the dignity of the persons. Some practices may in themselves be humiliating, such as forcing a detainee to strip naked in the presence of a prison guard of the opposite gender. Invasive searches (cavity searches) which involve a risk of physical or psychological injury, should be prohibited.

Means of restraints: resorting to means of restraint is a serious measure which must always be justified by preventing imminent harm to the person, a third party or the surroundings and it must be proportionate to such aim. Strapping a person for a prolonged period on a fixation bed, when he/she is not showing any sign of danger to himself/herself or his/her surroundings would amount to inhuman and degrading treatment.

Force-feeding:  force feeding should not be allowed provided that the detainee is capable of understanding the consequences of refusing food and is capable of forming a rational judgement. Handcuffing a detainee of sound mind to a chair and forcing him/her to swallow a rubber tube would amount to inhuman and degrading treatment.

Torture and persons in situations of vulnerability

Children, because of their age and stage of development, are particularly vulnerable and exposed to the risk of being ill-treated or even tortured. The authorities must take all necessary measures to prevent harassment, bullying and other forms of violence from fellow detainees. A failure to protect children from violence may constitute ill-treatment. It is therefore important that specific and effective safeguards are in place for children.  Children are not a homogenous group: girls, children with disabilities and LGBTI children are among the most vulnerable and are therefore at higher risk of being ill-treated or tortured.

LGBTI persons are often discriminated against on the basis of their sexual orientation or gender identity and are therefore at higher risk of being tortured and ill-treated, particularly in countries where homosexuality and/or transgenderism are reprehended.

LGBTI detainees are more exposed to being harassed, humiliated and abused (including sexually) by staff and fellow inmates. The authorities have the obligation to protect them from such abuse, while noting that isolating LGBTI persons from the rest of the prison population is not a long-term solution and could in itself constitute ill-treatment.

Persons with disabilities, whether physical or mental, are exposed to higher risks of discrimination and victimization that can lead to ill-treatment and even torture, both from staff and fellow detainees. The authorities must provide them with additional protection and failing to do so may be conducive to ill-treatment or torture.  The authorities should adapt the procedures and the physical facilities within the prison to ensure to persons with disabilities the enjoyment of their fundamental rights on an equal basis with others detainees. The denial of reasonable accommodations can evolve into or amount to ill-treatment.

Foreigners and detainees from minorities and indigenous people may not have a good command of the main spoken language and/or be less familiar with procedures or regulations which render them more vulnerable to abuse. They are also more exposed to the risk of being discriminated against, and to be victims of racist or other forms of violence, including by prison staff. Those factors can be conducive to situations of ill-treatment and torture.

Women in detention face a high risk of ill-treatment and torture, and are exposed to gender based violence. Such violence is directed against a woman because she is a woman or it affects women disproportionately. Gender based violence includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and others.

One of the gravest forms of gender based violence is rape. Women may be subjected to rape in places of deprivation of liberty as a means of coercion to elicit confessions, to humiliate and dehumanize them or merely to use the opportunity of their absolute powerlessness. Rape may also take place in the form of sexual services which women prisoners are forced to provide in return for access to goods and privileges or for enjoying their most basic human rights. In addition, sexual abuse of women by male prisoners may take place, sometimes with the complicity of prison guards. In this context, rape has been internationally recognized as a form of torture.

Lack of attention to women’s gender specific needs can evolve into or amount to cruel, inhuman or degrading treatment or punishment.

Due to their age, gender and small numbers, girls comprise one of the most vulnerable groups in detention, and are therefore at higher risk of ill-treatment and torture. Most prison systems around the world lack specific policies and programs to accommodate for their unique needs, including their needs for protection. Where mixed gender staffing is used, serious abuse by male staff in juvenile girl prisons has been reported, demonstrating the extent of girls’ vulnerability in detention. Girls may also be abused by older women and female staff.

International Covenant on Civil and Political Rights

Article 7

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. (...)

Article 10.1

All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

United Nations Convention on Torture and other cruel, inhuman or degrading treatment or punishment

Article 1

1. For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.

Article 2

1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

2. 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.

3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

Article 3

1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he 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.

Article 4

1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.

2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.

Article 5.2

Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in paragraph I of this article.

Article 10

1. Each State Party shall ensure that education and information regarding the prohibition against torture are fully included in the training of law enforcement personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment.

2. Each State Party shall include this prohibition in the rules or instructions issued in regard to the duties and functions of any such person.

Article 11

Each State Party shall keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture.

Article 12

Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.

Article 14

1. Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation.

2. Nothing in this article shall affect any right of the victim or other persons to compensation which may exist under national law.

Article 15

Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.

International Convention on the Rights of Persons with Disabilities

Article 15.1

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his or her free consent to medical or scientific experimentation.

Article 15.2

States Parties shall take all effective legislative, administrative, judicial or other measures to prevent persons with disabilities, on an equal basis with others, from being subjected to torture or cruel, inhuman or degrading treatment or punishment.

Convention on the Rights of the Child

Article 37

States Parties shall ensure that:

(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. (...);

International Convention on the Rights of Migrants and their families

Article 10

No migrant worker or member of his or her family shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules)

Rule 1

All  prisoners  shall  be  treated  with  the  respect  due  to  their  inherent dignity and value as human beings. No prisoner shall be subjected to, and all prisoners  shall  be  protected  from,  torture  and  other  cruel,  inhuman  or degrading  treatment or  punishment,  for  which  no  circumstances  whatsoever may be invoked as a justification. The safety and security of prisoners, staff, service providers and visitors shall be ensured at all times.

Rule 7

No person shall be received in a prison without a valid commitment order. The following information shall be entered in the prisoner file management system upon admission of every prisoner: [...]
(d) Any visible injuries and complaints about prior ill-treatment [...]

Rule 8

The following information shall be entered in the prisoner file management system in the course of imprisonment, where applicable: [...]

(d) Requests and complaints, including allegations of torture or other cruel, inhuman or degrading treatment or punishment, unless they are of a confidential nature; [...]

(f) Information on the circumstances and causes of any injuries or death and, in the case of the latter, the destination of the remains.

Rule 30

A physician or other qualified health-care professionals, whether or not they are required to report to the physician, shall see, talk with and examine every prisoner as soon as possible following his or her admission and thereafter as necessary. Particular attention shall be paid to: [...]

(b) Identifying any ill-treatment that arriving prisoners may have been subjected to prior to admission [...]

Rule 34

If, in the course of examining a prisoner upon admission or providing medical care to the prisoner thereafter, health-care professionals become aware of  any  signs  of  torture  or  other  cruel,  inhuman  or  degrading  treatment  or punishment,  they  shall  document and  report  such  cases  to  the  competent medical,  administrative  or  judicial  authority. Proper  procedural  safeguards shall be followed in order not to expose the prisoner or associated persons to foreseeable risk of harm.

Rule 43.1

In no circumstances may restrictions or disciplinary sanctions amount to torture or other  cruel,  inhuman  or  degrading  treatment  or  punishment. The following practices, in particular, shall be prohibited:
(a) Indefinite solitary confinement;
(b) Prolonged solitary confinement;
(c) Placement of a prisoner in a dark or constantly lit cell;
(d) Corporal  punishment  or  the  reduction  of  a  prisoner’s  diet  or drinking water;
(e) Collective punishment

Rule 57.3

Allegations of torture or other cruel, inhuman or degrading treatment or punishment of prisoners shall be dealt with immediately and shall result in a prompt  and  impartial  investigation  conducted  by  an  independent  national authority in accordance with paragraphs 1 and 2 of rule 71.

Rule 71

1. Notwithstanding  the  initiation  of  an  internal  investigation,  the  prison director shall  report,  without  delay,  any  custodial  death,  disappearance  or serious injury to a judicial or other competent authority that is independent of the  prison  administration  and  mandated  to  conduct  prompt,  impartial  and effective investigations into the circumstances and causes of such cases. The prison administration shall fully cooperate with that authority and ensure that all evidence is preserved.

2. The obligation in paragraph 1 of this rule shall equally apply whenever there are reasonable grounds to believe that an act of torture or other cruel, inhuman or degrading treatment or punishment has been committed in prison, irrespective of whether a formal complaint has been received.

3. Whenever there are reasonable grounds to believe that an act referred to in  paragraph  2  of  this  rule  has  been  committed,  steps  shall  be  taken immediately  to  ensure  that  all  potentially  implicated  persons  have  no involvement in the investigation and no contact with the witnesses, the victim or the victim’s family.

Rule 76.1

Training referred to in paragraph 2 of rule 75 shall include, at a minimum, training on:
[...]
(b) Rights and duties of prison staff in the exercise of their functions, including respecting the human dignity of all prisoners and the prohibition of certain conduct, in particular torture and other cruel, inhuman or degrading treatment or punishment [...]

Rule 81

1. In a prison for both men and women, the part of the prison set aside for women shall be under the authority of a responsible woman staff member who shall have the custody of the keys of all that part of the prison.

2. No male staff member shall enter the part of the prison set aside for women unless accompanied by a woman staff member.

3. Women prisoners shall be attended and supervised only by women staff members. This does not, however, preclude male staff members, particularly doctors and teachers, from carrying out their professional duties in prisons or parts of prisons set aside for women.

Body of principles for the Protection of All Persons under Any Form of Detention or Imprisonment

Principle 6

No person under any form of detention or imprisonment shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. No circumstance whatever may be invoked as a justification for torture or other cruel, inhuman or degrading treatment or punishment.

Principle 33

1. A detained or imprisoned person or his counsel shall have the right to make a request or complaint regarding his treatment, in particular in case of torture or other cruel, inhuman or degrading treatment, to the authorities responsible for the administration of the place of detention and to higher authorities and, when necessary, to appropriate authorities vested with reviewing or remedial powers.

2. In those cases where neither the detained or imprisoned person nor his counsel has the possibility to exercise his rights under paragraph 1 of the present principle, a member of the family of the detained or imprisoned person or any other person who has knowledge of the case may exercise such rights.

3. Confidentiality concerning the request or complaint shall be maintained if so requested by the complainant.

4. Every request or complaint shall be promptly dealt with and replied to without undue delay.  If the request or complaint is rejected or, in case of inordinate delay, the complainant shall be entitled to bring it before a judicial or other authority. Neither the detained or imprisoned person nor any complainant under paragraph 1 of the present principle shall suffer prejudice for making a request or complaint.

Code of Conduct for Law Enforcement Officials

Article 5

No law enforcement official may inflict, instigate or tolerate any act of torture or other cruel, inhuman or degrading treatment or punishment, nor may any law enforcement official invoke superior orders or exceptional circumstances such as a state of war or a threat of war, a threat to national security, internal political instability or any other public emergency as a justification of torture or other cruel, inhuman or degrading treatment or punishment.

Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, A/HRC/31/57, 5 January 2016

Paragraph 8

8. The purpose and intent elements of the definition of torture (A/HRC/13/39/Add.5) are always fulfilled if an act is gender-specific or perpetrated against persons on the basis of their sex, gender identity, real or perceived sexual orientation or non-adherence to social norms around gender and sexuality (A/HRC/7/3). The definitional threshold between ill-treatment and torture is often not clear. A gender-sensitive lens guards against a tendency to regard violations against women, girls, and lesbian, gay, bisexual and transgender persons as ill-treatment even where they would more appropriately be identified as torture.

Paragraph 10

States’ obligations to prevent torture are indivisible, interrelated, and interdependent with the obligation to prevent other forms of ill-treatment. States have an obligation to prevent torture and ill-treatment whenever they exercise custody or control over individuals and where failure to intervene encourages and enhances the danger of privately inflicted harm (general comment No. 2). States fail in their duty to prevent torture and ill-treatment whenever their laws, policies or practices perpetuate harmful gender stereotypes in a manner that enables or authorizes, explicitly or implicitly, prohibited acts to be performed with impunity. States are complicit in violence against women and lesbian, gay, bisexual and transgender persons whenever they create and implement discriminatory laws that trap them in abusive circumstances (A/HRC/7/3).

Paragraph 13

Women, girls, and lesbian, gay, bisexual and transgender persons are at particular risk of torture and ill-treatment when deprived of liberty, both within criminal justice systems and other, non-penal settings. Structural and systemic shortcomings within criminal justice systems have a particularly negative impact on marginalized groups. Measures to protect and promote the rights and address the specific needs of female and lesbian, gay, bisexual and, transgender prisoners are required and cannot not be regarded as discriminatory.

Paragraph 19

Women and girls are at particular risk of sexual assault by male prisoners and prison staff, including rape, insults, humiliation and unnecessary invasive body searches. Added to the trauma of sexual abuse is the particular stigmatization women in these situations face, for instance for having engaged in extramarital sexual relations or due to the risk of pregnancy or of sexual abuse leading to the inability to have children. Sexual humiliation may occur when male guards watch female prisoners in intimate moments such as dressing or showering. The risk of sexual and other forms of violence can arise during transfers to police stations, courts or prisons, and particularly where male and female prisoners are not separated or when male staff transport female prisoners. Separating male and female detainees and ensuring that female detainees are supervised by female guards and prison officials are key safeguards against abuse. Rule 81 of the Nelson Mandela Rules mandates that male staff must not enter a women’s institution unless they are accompanied by a female officer. Many States nevertheless fail to adhere to this and other unambiguous requirements. Abuses can occur even when female and male living quarters within an institution are separate, for instance when women’s access to such basic necessities as fresh water is circumscribed by their exclusive availability in male quarters (CAT/OP/BEN/1). Furthermore, authorities’ failure to prevent inter-prisoner violence amounts to torture or ill-treatment (A/HRC/13/39/Add.3).

Paragraph 20

Women are at particular risk of torture and ill-treatment during pretrial detention because sexual abuse and violence may be used as a means of coercion and to extract confessions. A majority of female detainees worldwide are first-time offenders suspected of or charged with non-violent (drug- or property-related) crimes, yet are automatically sent to pretrial detention. In many States the number of women held in pretrial detention is equivalent to or higher than that of convicted female prisoners, and women are held in pretrial detention for extremely long periods (A/68/340). Women in pretrial detention facilities — which are typically not built or managed in a gender-sensitive manner — tend not to have access to specialized health care and educational or vocational training. They face higher risks of sexual assault and violence when they are held in facilities with convicted offenders and men or are supervised by male guards. According to the Committee against Torture, the undue prolongation of the pretrial stage of detention represents a form of cruel treatment, even if the victim is not detained (A/53/44).

Paragraph 24

Detention, often for prolonged periods, is sometimes used on the grounds of “protecting” female victims of rape, honour-based violence and other abuses or to ensure that they will testify against the perpetrator in court. This practice further victimizes women, deters them from reporting rape and sexual abuse and can amount to torture or ill-treatment per se.

Paragraph 29

Girls in the criminal justice system are at particular risk of experiencing torture and ill-treatment. The majority have prior histories of abuse and violence that serve as primary predictors of their entry into the juvenile justice system. Girls’ particular physical and mental health needs often go unrecognized and incarceration itself tends to exacerbate trauma, with girls suffering disproportionately from depression and anxiety and exhibiting a higher risk of self-harm or suicide than boys or adults. Many States lack facilities for separating girls from adults or boys, which significantly increases the risks of violence, including sexual violence. The employment of male guards in girls’ facilities significantly increases the risk of abuse, while girls held in remote, segregated facilities are isolated and have limited contact with their families.

Paragraph 30

Many States use the criminal justice system as a substitute for weak or non-existent child protection systems, leading to the criminalization and incarceration of disadvantaged girls who pose no risk to society and are instead in need of care and protection by the State. The Special Rapporteur recalls that the deprivation of liberty of children is inextricably linked with ill-treatment and must be a measure of last resort, used for the shortest possible time, only when it is in the best interest of the child and limited to exceptional cases (A/HRC/28/68). Accordingly, the lack of gender-centred juvenile justice policies directly contributes to the perpetration of torture and ill-treatment of girls. There is an urgent need for policies that promote the use of such alternative measures as diversion and restorative justice, incorporate broad prevention programmes, build a protective environment and address the root causes of violence against girls. Failure to support girls in detention with adequate and complete information about their rights in a comprehensible manner and to provide assistance with reporting complaints in a safe, supportive and confidential manner further aggravates mistreatment.

Paragraph 32

Upon interception or rescue, migrants and refugees tend to be criminalized and detained in substandard and overcrowded conditions amounting to torture or ill-treatment. Unsanitary conditions and inadequate medical care, including lack of access to reproductive care, affect women in particular. Many facilities fail to separate female and male prisoners, leading to heightened risks of sexual violence from other detainees or guards (A/HRC/20/24). Lesbian, gay, bisexual and transgender migrants are also vulnerable to abuse on the basis of their sexual orientation and gender identity.

Paragraph 34

Lesbian, gay, bisexual and transgender persons who are deprived of their liberty are at particular risk of torture and ill-treatment, both within the criminal justice system and in other contexts such as immigration detention, medical establishments and drug rehabilitation centres. Criminal justice systems tend to overlook and neglect their specific needs at all levels. Transgender persons tend to be placed automatically in male or female prisons or wards without regard to their gender identity or expression.

Report of the Special Rapporteur on the Question of Torture, E/CN.4/2003/68, 17 December 2002

Paragraph 26 (g)

Torture is most frequently practised during incommunicado detention. Incommunicado detention should be made illegal, and persons held incommunicado should be released without delay.  Information regarding the time and place of arrest as well as the identity of the law enforcement officials having carried out the arrest should be scrupulously recorded; similar information should also be recorded regarding the actual detention, the state of health upon arrival at the detention centre, as well as the time the next of kin and lawyer were contacted and visited the detainee.  Legal provisions should ensure that detainees are given access to legal counsel within 24 hours of detention.  In accordance with the Basic Principles on the Role of Lawyers, all persons arrested or detained should be informed of their right to be assisted by a lawyer of their choice or a State-appointed lawyer able to provide effective legal assistance.  The right of foreign nationals to have their consular or other diplomatic representatives notified must be respected.  Security personnel who do not honour such provisions should be disciplined.  In exceptional circumstances, under which it is contended that prompt contact with a detainee’s lawyer might raise genuine security concerns and where restriction of such contact is judicially approved, it should at least be possible to allow a meeting with an independent lawyer, such as one recommended by a bar association.  In all circumstances, a relative of the detainee should be informed of the arrest and place of detention within 18 hours.  At the time of arrest, a person should undergo a medical inspection, and medical inspections should be repeated regularly and should be compulsory upon transfer to another place of detention. (…)

Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity

Principle 10

Everyone has the right to be free from torture and from cruel, inhuman or degrading treatment or punishment, including for reasons relating to sexual orientation or gender identity.

General comment n°21 on article 10, Human Rights Committee

Paragraph 3

Article 10, paragraph 1, imposes on States parties a positive obligation towards persons who are particularly vulnerable because of their status as persons deprived of liberty, and complements for them the ban on torture or other cruel, inhuman or degrading treatment or punishment contained in article 7 of the Covenant. Thus, not only may persons deprived of their liberty not be subjected to treatment that is contrary to article 7, including medical or scientific experimentation, but neither may they be subjected to any hardship or constraint other than that resulting from the deprivation of liberty; respect for the dignity of such persons must be guaranteed under the same conditions as for that of free persons.

Committee on the Rights of Persons with Disabilities, Guidelines on article 14, The right to liberty and security of persons with disabilities, Adopted during the Committee’s 14th session, September 2015

VI. Protection of persons with disabilities deprived of their liberty from violence, abuse and ill-treatment

12. The Committee has called on States parties to protect the security and personal integrity of persons with disabilities who are deprived of their liberty, including by eliminating the use of forced treatment, seclusion and various methods of restraint in medical facilities, including physical, chemical and mechanic restrains.  The Committee has found that these practices are not consistent with the prohibition of torture and other cruel, inhumane or degrading treatment or punishment against persons with disabilities pursuant to article 15 of the Convention.

European Convention on Human Rights and Fundamental Freedoms

Article 3

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

African Charter on human and people’s rights

Article 5

Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man, particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.

African Charter on the Rights and Welfare of the Child

Article 16: Protection Against Child Abuse and Torture

1. State Parties to the present Charter shall take specific legislative, administrative, social and educational measures to protect the child from all forms of torture, inhuman or degrading treatment and especially physical or mental injury or abuse, neglect or maltreatment including sexual abuse, while in the care of the child.

2. Protective measures under this Article shall include effective procedures for the establishment of special monitoring units to provide necessary support for the child and for those who have the care of the child, as well as other forms of prevention and for identification, reporting referral investigation, treatment, and follow-up of instances of child abuse and neglect.

Article 17: Administration of Juvenile Justice

1. Every child accused or found guilty of having infringed penal law shall have the right to special treatment in a manner consistent with the child’s sense of dignity and worth and which reinforces the child’s respect for human rights and fundamental freedoms of others.

2. State Parties to the present Charter shall in particular:

a) ensure that no child who is detained or imprisoned or otherwise deprived of his/her liberty is subjected to torture, inhuman or degrading treatment or punishment;

b) ensure that children are separated from adults in their place of detention or imprisonment;

c) ensure that every child accused of infringing the penal law:

i. shall be presumed innocent until duly recognized guilty;
ii. shall be informed promptly in a language that he understands and in detail of the charge against him, and shall be entitled to the assistance of an interpreter if he or she cannot understand the language used;
iii. shall be afforded legal and other appropriate assistance in the preparation and presentation of his defence;
iv. shall have the matter determined as speedily as possible by an impartial tribunal and if found guilty, be entitled to an appeal by a higher tribunal;

d) prohibit the press and the public from the trial.

3. The essential aim of treatment of every child during the trial and also if found guilty of infringing the penal law shall be his or her reformation, reintegration into his or her family and social rehabilitation.

4. There shall be a minimum age below which children shall be presumed not to have the capacity to infringe the penal law.

Arab Charter on Human Rights

Article 8

a) No one shall be subjected to physical or mental torture or to cruel, inhuman or degrading treatment or punishment.

b) The State Parties shall protect every person in their territory from being subjected to such practices and take effective measures to pre- vent such acts. The practice thereof, or participation therein, shall be regarded as a punishable offense. Each victim of an act of torture is entitled to a right to compensation and rehabilitation.

Inter-American Convention to Prevent and Punish Torture

Article 1

The State Parties undertake to prevent and punish torture in accordance with the terms of this Convention.

Article 2

For the purposes of this Convention, torture shall be understood to be any act intentionally performed whereby physical or mental pain or suffering is inflicted on a person for purposes of criminal investigation, as a means of intimidation, as personal punishment, as a preventive measure, as a penalty, or for any other purpose. Torture shall also be understood to be the use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capacities, even if they do not cause physical pain or mental anguish.
The concept of torture shall not include physical or mental pain or suffering that is inherent in or solely the consequence of lawful measures, provided that they do not include the performance of the acts or use of the methods referred to in this article.

Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas

Principle I - Humane treatment

All persons subject to the jurisdiction of any Member State of the Organization of American States shall be treated humanely, with unconditional respect for their inherent dignity, fundamental rights and guarantees, and strictly in accordance with international human rights instruments.

In particular, and taking into account the special position of the States as guarantors regarding persons deprived of liberty, their life and personal integrity shall be respected and ensured, and they shall be afforded minimum conditions compatible with their dignity.

They shall be protected from any kind of threats and acts of torture, execution, forced disappearance, cruel, inhuman, or degrading treatment or punishment, sexual violence, corporal punishment, collective punishment, forced intervention or coercive treatment, from any method intended to obliterate their personality or to diminish their physical or mental capacities.

Circumstances such as war, states of exception, emergency situations, internal political instability, or other national or international emergencies may not be invoked in order to evade the obligations imposed by international law to respect and ensure the right to humane treatment of all persons deprived of liberty.

European Prison Rules

Rule 1

All persons deprived of their liberty shall be treated with respect for their human rights.

Rule 4

Prison conditions that infringe prisoners’ human rights are not justified by lack of resources.

Rule 34.3

Particular efforts shall be made to protect women prisoners from physical, mental or sexual abuse and give access to specialised services for women prisoners who have needs as referred to in Rule 25.4, including being informed of their right to seek recourse from judicial authorities, legal assistance, psychological support, or counselling and appropriate medical advice.

Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa

22. Torture and other cruel, inhuman or degrading treatment or punishment and other serious human rights violations in police custody and pre-trial detention

b. If there are reasonable grounds to believe that an act of torture and other cruel, inhuman or degrading treatment or punishment, or another serious human rights violation has taken place, States shall ensure prompt investigation by independent and impartial authorities.

33. Persons with disabilities

a. General principles

ii. The arrest or detention of a person with a physical, mental, intellectual or sensory disability shall be in conformity with the law and consistent with the right to humane treatment and the inherent dignity of the person. The existence of a disability can in no case justify a deprivation of liberty. No person with a disability shall be deprived of his or her liberty unlawfully or arbitrarily.

iii. Every person with a physical, mental, intellectual or sensory disability deprived of his or her liberty shall be treated with humanity and respect, and in a manner that takes into account the needs of persons with physical, mental, intellectual or sensory disabilities, including by provision of reasonable accommodation. The State shall uphold the right of individuals to informed consent with regard to treatment.

38. Remedies

All persons who are victims of illegal or arbitrary arrest and detention, or torture and ill-treatment during police custody or pre-trial detention have the right to seek and obtain effective remedies for the violation of their rights. This right extends to immediate family or dependents of the direct victim. Remedies include, but are not limited to:

a. Restitution to restore the victim to the situation that would have existed had the violation of their right not happened.

b. Compensation, including any quantifiable damages resulting from the right violation and any physical or mental harm (such as physical or mental harm, pain, suffering and emotional distress, lost opportunities including education, material damage and loss of actual or potential earnings, harm to reputation or dignity, and costs required for legal services or expert assistance, medicines, medical services, and psychological and social services).

c. Rehabilitation, including medical and psychological care as well as legal and social services.

d. Satisfaction and guarantees of non-repetition.

Recommendation CM/Rec(2010)5 of the Committee of Ministers to member states on measures to combat discrimination on grounds of sexual orientation or gender identity

A. “Hate crimes” and other hate-motivated incidents

4. Member states should take appropriate measures to ensure the safety and dignity of all persons in prison or in other ways deprived of their liberty, including lesbian, gay, bisexual and transgender persons, and in particular take protective measures against physical assault, rape and other forms of sexual abuse, whether committed by other inmates or staff; measures should be taken so as to adequately protect and respect the gender identity of transgender persons.

Report of the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, 11 May 2018, A/HRC/38/43

Para. 28

The violence reported against persons on the basis of their actual or perceived sexual orientation or gender identity also includes death threats, beatings, corporal punishment imposed as a penalty for same-sex conduct, arbitrary arrest and detention, abduction, incommunicado detention, rape and sexual assault, humiliation, verbal abuse, harassment, bullying, hate speech and forced medical examinations, including anal examinations, and instances of so-called “conversion therapy”. Considering the pain and suffering caused and the implicit discriminatory purpose and intent of these acts, they may constitute torture or other cruel, inhuman or degrading treatment or punishment in situation where a State official is involved, at least by acquiescence (A/HRC/22/53, para. 17)