Respect for the integrity of the person requires states to protect the right to life and respect the prohibition of torture and ill-treatment. Both rights are dealt with in this section. The rights to integrity are of utmost importance. This is reflected by the fact that unlike some other rights which contain clauses permitting their restriction on grounds such as the need to maintain public order it is never possible to justify restrictions to these rights. A second important attribute of the rights to integrity is that they cannot be derogated from in time of public emergency.
A. The right to life
The right to life is considered a fundamental human right because, without it, enjoyment of all of the other rights and freedoms established in international human rights Conventions would be rendered nugatory; there can be no rights if there is no life.
Given the fundamental importance of the right to life to the protection of human rights, under most human rights instruments the right to life is a supreme right from which no derogation is permitted, even in time of a public emergency threatening the life of the nation (see Article 4(2) ICCPR, Article 15(2) ECHR and Article 27(2) ACHR).
One aspect that is generally overlooked with respect to the right to life pertains to the interpretation of the right to life itself. The Human Rights Committee issued a statement to the effect that under the ICCPR the expression ‘inherent right to life’ should not be understood in a restrictive manner, and that the protection of the right to life entails both a negative obligation not to take someone’s life and a positive obligation to protect the right to life, except in certain exceptional cases. In relation to positive obligations, the Committee considered that states parties should take all possible measures to reduce infant mortality and to increase life expectancy, especially measures to eliminate malnutrition and epidemics (see General Comment 6).
Another aspect that is very important with regard to the right to life is remedy for violations. With regard to the right to life, the Human Rights Committee has asserted that purely disciplinary and administrative remedies cannot be deemed to constitute adequate and effective remedies within the meaning of Article 2(3) ICCPR. The Inter- American Court of Human Rights has stated that ‘individuals lack true freedom if they cannot design life according to their own goals and strive to achieve their desires’; compensation seeks to restore the victim to his/ her original position enjoyed before the violation or to ensure that the victim gets other redress that corresponds to the wrong suffered. It is also worth noting that the right to life can include the obligation for an efficient investigation and a fair punishment of the authors when a violation is established.
Article 3 Universal Declaration provides that ‘everyone has the right to life, liberty and security of person.’ In all human rights Conventions, the right to life is dealt with separately from the right to liberty and security. The right to life is further developed in several human rights instruments, such as Article 6 ICCPR, Article 6 CRC, Article 9 CMW, Article 2 ECHR, Article 4 ACHR and Article 4 ACHPR.
The protection of the right to life will be examined under the following subsections: a) the right not to be arbitrarily killed by the state; b) disappearances; c) death penalty or capital punishment; and d) positive obligations arising from the right to life. In addition, this section will examine some problems of interpretation that arise with regard to the right to life: when the protection of life starts and when it ends.
Therefore attention will be paid to a) the unborn child/abortion; and b) euthanasia/ the right to die.
The right not to be arbitrarily killed by the state
Article 6(1) ICCPR states that no one shall be ‘arbitrarily’ deprived of his life. Article 4 declares that no derogation from Article 6 is allowed, not even in an emergency situation. Article 2 European Convention prohibits the ‘intentional deprivation’ of life and states that everyone shall have the right to life protected by law, and limits the situation in which deprivation of life is acceptable. Article 15 ECHR provides that this right is non-derogable in a war or state of emergency, except in respect of deaths resulting from lawful acts of war.
Article 4(1) ACHR provides that every person has the right to have his life respected. Article 27 provides that Article 4 is non-derogable in times of war, public danger or other emergency. Article 4 ACHPR states that human beings are inviolable. Everyone is entitled to respect for his/her life and the integrity of his/her person, and no one may be arbitrarily deprived of this right.
Special attention needs to be paid to extra-judicial executions, the paradigm violation of the right to life. These involve ‘killings committed, condoned or acquiesced by governments’; in the UN system, the expression ‘extra-judicial, summary and arbitrary executions’, is used. Originally, these terms did not fully overlap, but over the years the distinction between the three elements has become blurred. Even one of the most important international instruments in this area, the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, fails to define these types of executions. The character of extra-judicial executions has undoubtedly changed; these crimes have become more and more related to situations of armed conflict or civil war.
In 1982, the former UN Commission on Human Rights appointed a Special Rapporteur on Extra-legal, Summary and Arbitrary Executions. The Special Rapporteur carries out his/her mandate mainly on the basis of information brought to his/her attention by NGOs, governments, individuals and intergovernmental organisations. Communications received by the Special Rapporteur contain specific cases of alleged extra-judicial, summary or arbitrary executions, death threats, and/or general information about issues related to the right to life. All information received is examined and analysed by the Special Rapporteur before being transmitted to the government concerned. The Special Rapporteur’s work includes the examination of individual cases and the implementation of on-the-spot visits. The Special Rapporteur also regularly sends ‘urgent messages’ in cases of imminent executions.
At the UN level, two instruments deserve to be noted in this context: the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions (1989) and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990). Although these instruments are not legally binding, they assist in determining what constitutes unlawful deprivation of life. Among the various categories of killings by state officials, international human rights law especially condemns those carried out on racial grounds. Article 5 CERD obliges states to take measures to prohibit racial discrimination and provide protection against violence or bodily harm ‘whether inflicted by government officials or by any individual, group or institution’. The Convention on the Suppression and Punishment of the Crime of Apartheid defines ‘apartheid’ as a ‘crime against humanity’ and prohibits the killing of members of a racial group (Article II). Similarly, the Convention on the Prevention and Punishment of the Crime of Genocide defines the offence of genocide to entail a number of acts ‘committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such’, including ‘killing members of the group’ (Article I).
It is important to note that not all killings by states belong to the category of extralegal executions. In certain circumstances, human rights law does not condemn killings committed by state agents. Law enforcement officials, for example, may have recourse to the use of force. The European Convention, alone among the human rights instruments, defines which type of killing would not be arbitrary. It allows the use of force, only when it is absolutely necessary, in three specific situations: a) in defence of any person from unlawful violence; b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; and c) in action lawfully taken for the purpose of quelling a riot or insurrection.
‘Disappearances’ (or ‘unacknowledged detention’) is considered to be:
the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law (Article 2, International Convention for the Protection of All Persons from Enforced Disappearance).
‘Disappearances’ are not new in the history of human rights violations. A number of circumstances may be identified under which disappearance occurs most frequently. The most prominent of these are situations of internal armed conflict, declarations of a state of emergency and high levels of militarisation. The investigation of disappearances is often hampered by the accompanying violence and chaos. It may be further complicated by the fact that many disappearances are committed by non-governmental entities. On the other hand, official authorities (not necessarily the central government) are often responsible for disappearances and extra-judicial executions. Ineffectiveness of the judiciary, including the lack of judicial independence, ineffective protection of the right ofhabeas corpus, non-compliance with immediate and accessible registration of detainees, and impunity for violations, are factors that facilitate the actions of perpetrators.
‘Disappearances’ involve violations of the right to liberty and security of person, will often involve torture and other ill-treatment of the ‘disappeared person’ (including as a result of the very fact of being ‘disappeared’ and isolated from one’s family for a prolonged period), and often end in death. Indeed, ‘disappeared’ persons often never reappear. Because the fate and whereabouts of ‘disappeared’ persons remain unknown, it is considered a continuing crime (Article 3 Inter-American Convention on Forced Disappearance of Persons). ‘Disappearances’ also impact on society as a whole by creating a culture of fear and insecurity and the impact on family members of disappearance may lead to such anguish as to amount to torture or other ill-treatment.
In the early 1990s, the international community took steps to develop further standards that would explicitly prohibit the practice of disappearances, and deal with both the victims and the perpetrators. In 1992, the UN Commission on Human Rights adopted a Declaration on the Protection of All Persons from Enforced Disappearance. At the Inter-American level, the Convention on the Forced Disappearance of Persons was adopted in 1994. On 20 December 2006, the UNGA adopted the International Convention for the Protection of All Persons from Enforced Disappearance (not yet entered into force in March 2009). The Convention contains several new human rights, a clear definition of enforced disappearance (see above) as well as innovative provisions that provide for strengthened prevention, protection, reparation and prosecution of enforced disappearances. It affirms in Article 1 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 for enforced disappearance’ and defines the widespread or systematic use of enforced disappearance as a crime against humanity (Article 6).
The Rome Statute of the International Criminal Court defines ‘enforced disappearance of persons’ as ‘the arrest, detention or abduction of persons by, or with the authorisation, support or acquiescence of, a State or a political organisation, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time’ (Article 7(2)(i)). According to the Statute, if committed against any civilian population as part of a widespread or systematic attack, ‘forced disappearances’ are considered a crime against humanity.
The Human Rights Committee also elaborates on the obligation of states parties with regard to disappearances in its General Comment 6 on the right to life. It requires states to take specific and effective measures to prevent the disappearances of individuals. They should establish effective facilities and procedures to thoroughly investigate cases of missing and disappeared persons in circumstances that may involve the violation of the right to life.
Although ‘disappearances’ sometimes lead to extra-judicial executions, this is not always the case: in some instances, ‘disappeared’ persons who have been presumed killed or officially declared dead have later returned alive. However, extra-judicial executions and disappearances share two major characteristics: the (virtual) elimination of political opponents (real or assumed), and the denial of accountability.
Within the UN system there is a charter-based body that deals specifically with disappearances: the Working Group on Enforced and Involuntary Disappearances, established by the Human Rights Commission in 1980, whose mandate was assumed by the Human Rights Council and extended in March 2008 for a further three years.
The basic mandate of this Working Group is to assist the relatives of disappeared persons to ascertain the fate and whereabouts of their missing family members. For this purpose, the Working Group receives and examines reports of disappearances submitted by relatives of missing persons or human rights organisations acting on their behalf. After determining whether those reports comply with a number of criteria, the Working Group transmits individual cases to the governments concerned, requesting them to carry out investigations and to inform the Working Group of the results. The Working Group deals with the numerous individual cases of human rights violations on a purely humanitarian basis, irrespective of whether the government concerned has ratified any of the existing legal instruments that provide for an individual complaints procedure. It essentially acts as a channel of communication between the families of missing persons and governments, and has successfully developed a dialogue with the majority of governments concerned with the aim of solving cases of disappearance. With a view to preventing irreparable damage, the Working Group has also established an urgent action procedure under which the Working Group’s Chairman is authorised to act on reported cases of disappearance occurring in between the Group’s sessions, thus helping to avoid any delays in its attempts to save lives (see II§1.C.2).
Finally, it is important to note that in the context of disappearances and extra-judicial executions, the question of impunity has recently attracted much attention, not only in Latin America but also in other regions. Impunity refers to a situation where the perpetrators of disappearances and extra-judicial executions or other human rights violations are not prosecuted and brought to justice. Systematic impunity is likely to contribute to a quasi-justification, condoned by the authorities in the light of ‘special circumstances’, of the illegal acts committed by state officials. Many governments and the UN human rights bodies have therefore regularly called for measures against impunity.
The Committee against Torture also has dealt with the issue of disappearances. It has issued many conclusions and recommendations in recent years, especially directed towards the United States. The Committee’s concern was mostly due to the so-called ‘War on Terror’ since 2001. The same concern was highlighted in the 2005 annual report of the Working Group on Enforced or Involuntary Disappearances:
The Working Group is particularly troubled about reports of disappearances linked to the ‘war on Terror’. The Working Group has noted a strong trend since 2001 whereby many States explain disappearances with reference to ‘terrorists’. In some countries, authorities use the need to combat terror as a justification for repression against opposition groups. This sometimes results in disappearances. [?]. The Working Group reminds all Governments that under article 7 of the Declaration [on the Protection of All Personsrom Enforced Disappearance], ‘No circumstances whatsoever, whether a threat of war, a state of war, internal political instability or any other public emergency, may be invoked to justify enforced disappearances’. This includes any type of counter-terrorism campaign. The Working Group urges all Governments to comply with their obligations under international human rights and international humanitarian law [?], and to make available to families all information on the fate and whereabouts of any person who is arrested and detained, for whatever reason.
Efforts to combat terrorism have raised a series of human rights issues, especially regarding torture and forced disappearances. To answer the need for safeguards, the Commission on Human Rights appointed in 2005 a Special Rapporteur on the Promotion and Protection of Human Rights While Countering Terrorism. This mandate was assumed by the Human Rights Council and was extended in December 2007 for three years. The role of the Special Rapporteur is to work with states to investigate and report to the Council and the UNGA on alleged violations of human rights while countering terrorism.
Death penalty or capital punishment
The death penalty has been the subject of controversy since the end of the 19th century. The first countries to abolish the death penalty were Venezuela (1863), Portugal (1867) and Costa Rica (1877). Gradually, all European countries followed and in the last few years the death penalty has not been carried out in any of the countries that are members of the Council of Europe.
The UDHR does not contain any provision on capital punishment. Article 3 UDHR states: ‘Everyone has the right to life, liberty and security of person.’ This provision, however, cannot be interpreted as constituting a ban on the death penalty. The same applies to the provisions of the ICCPR. The ICCPR stipulates, however, that the sentence of death may be imposed only for the most serious crimes and it may not be imposed on pregnant women or juvenile offenders (see below).
In 1989, the UN General Assembly adopted the Second Optional Protocol to the ICCPR, aiming at the abolition of the death penalty. Under the terms of the Protocol no one may be executed within the jurisdiction of a state party to the Protocol. Moreover, parties shall take measures to abolish the statutory provisions which allow the imposition of the death penalty. No reservation is admissible to the Protocol, except for the application of the death penalty in time of war.
The ECHR also contains provisions on the death penalty. Under Protocol No. 4 to the Convention, the death penalty shall be abolished, but provision is made for the application of a statutory death penalty as a sanction for certain acts in time of war or in case of a threat of war. In 2002 the Council of Europe adopted Protocol No. 13 abolishing the death penalty in all circumstances. This is the first legally binding international instrument to abolish the death penalty in all circumstances with no exceptions. As of March 2009, it has been ratified by 40 states. Protocols No. 4 and 13 provide that no derogations from their provisions shall be made under Article 15 of the Convention, that is, no derogation can be made from them in the event of an emergency, nor are any reservations permitted.
Article 4(2) to (6) ACHR sets out limitations on the imposition of the death penalty. Article 4(3), for example, stipulates that capital punishment cannot be re-established in states that have abolished it. The Second Protocol to the ACHR adopted in 1990 provides for the total abolition of the death penalty but allows states parties at the time of ratification or accession to declare that they reserve the right to apply the death penalty in wartime in accordance with international law, for extremely serious crimes of a military nature. Article 27 ACHR prohibits derogations from Article 2 in case of emergency.
The ACHPR does not contain any provision concerning the death penalty. The African Commission has adopted a resolution entitled ‘Urging States to Envisage a Moratorium on the Death Penalty’, in which it ‘urges all state parties to the African Charter on Human and Peoples’ Rights that still maintain the death penalty to comply fully with their obligations under the treaty and to ensure that persons accused of crimes for which the death penalty is a competent sentence are afforded all the guarantees in the African Charter’. In the same resolution, the African Commission called upon states that still apply the death penalty to impose it only for the most serious crimes and to consider its possible abolishment. Furthermore, in Interights et al. (on behalf of Mariette Sonjaleen Bosch) v. Botswana, Communication 240/2001) the Commission noted the international trend towards abolition of the death penalty and encouraged all states to ‘take all measures to refrain from exercising the death penalty’.
It should also be noted that, in several Conventions on extradition, a state can refuse to extradite a person who risks the death penalty in the state requesting the extradition (see, e.g., Article 11 of the European Convention on Extradition). This principle is applied by the European Court of Human Rights in Bader and Kanbor v. Sweden where it was declared: ‘the Swedish authorities would be putting the applicant at serious risk by sending him back to Syria and into the hands of the Syrian authorities, without any assurance that he will receive a new trial and that the death penalty will not be sought or imposed’. The same principle was used in stopping an extradition in the case ofShamayev and Others v. Georgia and Russia. This is also the current position of the Human Rights Committee (see Judge v. Canada). Therefore, although under general international law the abolition of the death penalty is not expressly required, there is a movement towards abolition as noted above. This movement is also supported by several resolutions of political bodies, which have expressed their commitment to progressively restrict the application of the death penalty (see, e.g., UNGA Resolutions 62/149 of 18 December 2007 and 63/168 of 18 December 2008 calling, inter alia, for a moratorium on executions). It is also relevant to note that, according to the statutes of the international criminal tribunals, the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Tribunal for Rwanda (ICTR) and the International Criminal Court (ICC), the death penalty cannot be imposed. The intention of the international community to abolish capital punishment is also made clear by Article 6(6) ICCPR that points out that nothing therein shall be invoked to delay or to prevent the abolition of capital punishment by any state party to the Covenant.
The Human Rights Committee has interpreted Article 6 (paras. 2 and 6) ICCPR as suggesting that abolition of the death penalty is desirable, and that measures to that end should be considered as progress in the enjoyment of the right to life within the meaning of Article 40.
Nonetheless, there is a debate as to the compatibility of the death penalty and the right to life. The ICCPR, for example, maintains the death sentence only for the most serious crimes. On this issue, a member of the Human Rights Committee remarked that the permission of the death penalty ‘merely provides a possibility for states parties to be released from their obligations under Articles 2 and 6 of the ICCPR, namely to respect and ensure to all individuals within their territory and under their jurisdiction the inherent right to life without any distinction, and enables them to make a distinction with regard to persons having committed the most serious crimes’ (see dissenting opinion of Mr. Bertil Wennergren in Kindler v. Canada).
Among the arguments put forward by those who support the abolition of the death penalty is that the risk of executing the innocent precludes the use of the death penalty. This argument is supported by evidence that many mistakes have been made in sentencing people to death. Another argument in support of abolition centres on its arbitrariness and discrimination. According to this line of reasoning, the death penalty does not single out the worst offenders, but rather selects an arbitrary group based, for instance, on the quality of the defence counsel. In addition, it is difficult to reconcile the fact that corporal punishment is prohibited under international law (prohibition of torture or cruel, inhuman and degrading treatment), while capital punishment apparently is not.
Given that capital punishment is not completely prohibited under international law, it is important to ensure that in countries where the death sentence is permitted international standards and safeguards should be applied and adhered to. Several international treaties as well as commentaries from the various human rights monitoring bodies and resolutions by the United Nations have highlighted these standards and safeguards. Some of these limitations are discussed below.
Human rights instruments have established that the death penalty must be prescribed by national law. This requirement is established by Article 6 ICCPR, Article 4 ACHR and Article 4 ACHPR. This requirement is also implicit in Article 2 ECHR. If capital punishment is not provided for by national law, carrying out a death sentence constitutes an extra-legal execution prohibited by all the above-mentioned provisions.
Most serious crimes requirement
Article 6(2) ICCPR states that: ‘In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court.’ The Economic and Social Council (ECOSOC) has interpreted ‘most serious crimes’ as those whose scope ‘does not go beyond intentional crimes with lethal or extremely grave consequences.’
Furthermore, the jurisprudence of the Human Rights Committee shows that sentencing someone to death for aggravated robbery in situations where the use of firearms does not produce any death would not meet the most serious crime requirement and the death penalty in such a situation would violate Article 6 (2) of the Covenant (see, e.g.,Lubuto v. Zambia).
The Inter-American Court also addressed this issue in a case in which it found that the application of the death penalty for crimes that do not exhibit characteristics of ‘utmost seriousness’ violates the right to life (see, e.g., Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago).
The requirement that the death penalty may only be applied for the most serious crimes has also been emphasised by the Special Rapporteur on Extrajudicial, Arbitrary or Summary Executions (see, e.g., Doc. E/CN.4/1998/68, para.94).
A death sentence must be imposed only ‘in accordance with the law in force at the time of the commission of the crime’ (Article 6(2) ICCPR). In other words, the penalty for the offence must have been laid down at the time it was committed. Similar restrictions are set forth in Article 4(2) ACHR and Article 2(1) ECHR. In addition, if the law has changed to provide a less severe penalty than that which existed at the time the offence was committed, the convicted person must benefit from the lighter penalty (see Article 15 ICCPR, Article 7 ECHR and Article 9 ACHR).
Fair trial safeguards
Apart from substantive restrictions on the use of the death penalty, human rights instruments also establish certain procedural requirements that must be met in capital punishment cases. These include, for example, international standards for a fair trail set forth in Article 14 ICCPR. Furthermore, for proceedings that may lead to the imposition of the death sentence, it is required that the highest standards of due process are followed. These include independence, competence, objectivity and impartiality of judges and juries; that all defendants facing capital punishment benefit from the services of a lawyer; and that the defendants must be presumed innocent until their guilt has been proved beyond a reasonable doubt. Failure to safeguard these requirements in cases involving the death sentence would amount to a violation of the right to life.
It is clear from the various UN resolutions and recommendations by treaty bodies that more protection of due process is required for capital punishment offences than for trials of other offences. Furthermore, international law requires that those sentenced to death should have the right to seek pardon or commutation of the sentence (Article 6(4) ICCPR).
The American Convention is explicit in this regard, stating that ‘capital punishment shall not be imposed while such a petition [amnesty, pardon or commutation of death sentence] is pending decision by the competent authority’ (Article 4(6) ACHR). The Geneva Conventions also establish this requirement for prisoners of war and protected civilians (see Article 106 Third Geneva Convention and Article 73 Fourth Geneva Convention).
Other procedural requirements with which states must comply are, inter alia, that adequate time between sentence and execution is allowed, that officials responsible for execution be informed of the status of cases, that executions should not be carried out in public and that the treatment of prisoners under sentence of death be guided by the UN Standard Minimum Rules for the Treatment of Prisoners, so as to avoid any exacerbation of their suffering.
Methods of execution
Related to the death penalty is the method by which it is carried out. A relationship exists between the right to life and freedom from torture. A person sentenced to death has the right not to be tortured, but conditions prior to execution or the manner in which an execution is carried out may constitute torture or other ill-treatment. The European Court and the Human Rights Committee have dealt with this aspect (see, e.g., Soering v. The United Kingdom and Ng v. Canada).
Juvenile offenders and pregnant women
The death penalty is also restricted in that certain categories of individuals may not be executed under any circumstances. According to Article 6(5) ICCPR the death sentence should not be carried out on those below eighteen years of age or on pregnant women. Article 37 CRC also lays down the rule that capital punishment shall not be imposed for offences committed by persons below 18 years of age. This requirement has also been established by Article 4(5) ACHR and by the two Additional Protocols to the Geneva Conventions. which rule out the death penalty for offenders who were under 18 years of age when the crime was committed.
The Additional Protocols to the Geneva Conventions expand on the prohibition of Article 6(5) ICCPR, forbidding executions of any ‘mother having dependent infants’ (Article 76 Additional Protocol I) and ‘mothers of young children’ (Article 6 Additional Protocol II).
The American Convention adds to this list of categories of individuals who may not be executed those who are over 70 years of age (Article 4(5) ACHR). The ECOSOC has also called for setting an upper age limit on death sentences (see ECOSOC Resolution 1989/64 of 24 May 1989). Although not provided for in legally binding instruments, other categories of people who are exempt from the death penalty include persons who have become insane and those suffering from mental retardation or limited mental competence (see, e.g., ECOSOC Resolution 1989/64 of 24 May 1989).
Positive obligations arising from the right to life
States not only have to refrain from intentional and unlawful deprivation of life; they must also take appropriate steps to safeguard the lives of those within their jurisdiction. Human rights supervisory bodies have identified a variety of positive obligations with which states are required to comply. Among these positive duties, it is worth mentioning the duty to investigate killings and the duty to punish offenders.
By reading the right to life in conjunction with the general duties to ‘guarantee’ (Article 1(1) ACHR), ‘ensure’ (Article 2(1) ICCPR) or ‘secure’ (Article 1 ECHR), we find an obligation of states to establish effective facilities and procedures to investigate killings and cases of missing or ‘disappeared’ persons in circumstances that may involve a violation of the right to life. The International Convention for the Protection of All Persons from Enforced Disappearance requires that states ensure that an effective investigation is undertaken by the authorities (Article 12).
The European Court tends to call these obligations the ‘state’s procedural obligations to protect the right to life’ (see, e.g., Timurtas v. Turkey), because they refer to the way in which the state must ‘proceed’ after a deprivation of life has occurred under its jurisdiction or after someone has disappeared. An interesting case on positive obligations arising from the right to life is Budayeva et al. v. Russia where the Court concluded that the authorities’ failure to implement land-planning and emergency relief policies in a hazardous area led to a foreseeable risk to the lives of the applicants. The serious administrative flaws which had prevented the implementation of those policies had caused death and injury to the applicants. The Russian authorities had therefore failed in their duty to establish a legislative and administrative framework with which to provide effective deterrence against a threat to the right to life, in violation of Article 2.
The Inter-American and the European Courts have stressed that the responsibility of the state to proceed with an ‘effective’ investigation is engaged even when there is no evidence that agents of the state have been implicated in the killing or disappearance and even if members of the victim’s family or others have not lodged a formal complaint about the killing with the authorities (see, e.g., Velásquez Rodríguez v. Honduras and Yasa v. Turkey). This duty is more stringent when the disappeared person was last held in state custody. In such circumstances it is incumbent upon the state to provide a plausible explanation as to the detainee’s fate, as well as to ensure some form of independent monitoring (see, e.g., Velásquez Rodríguez v. Honduras and Satik et al. v. Turkey).
If the state fails to undertake an official investigation it would be in breach of the right to life. However, it would also entail a breach of the obligation if, after having investigated, the investigation is considered by the supervisory organs to be ‘ineffective’. For example, in the cases of Belkiza Kaya and others v. Turkey and Adali v. Turkey, the European Court did not find evidence that organs of the state were involved in the killings, which would have been a substantive breach of Article 2. However, in both cases, the Court found that there had been an obvious lack of an adequate and effective investigation, leading to a procedural violation of Article 2.
Human rights monitoring organs have referred to various reasons for considering an investigation ‘ineffective’, including because it was not initiated promptly and immediately after someone’s death; because it was short in length and limited in scope; because it contained unexplained failures to take obvious steps; or because of the lack of independence of the organs entrusted to investigate (see, e.g., the European Court cases Velokova v. Bulgaria and Kaya v. Turkey). The European Court Grand Chamber decision in Gongadze v. Ukraine introduced the principle that a state’s negligence and failure to protect the life of a threatened individual could also amount to a procedural breach of Article 2. In this case, the Court declared that ‘the authorities, primarily prosecutors, ought to have been aware of the vulnerable position in which a journalist who covered politically sensitive topics placed himself/herself vis-à-vis those in power at the material time’, especially considering the fact that 18 journalists had died in Ukraine since 1991. The state was considered ‘blatantly negligent’ when refusing to take protective measures. The efficiency of the investigation of the murder was also heavily criticised by the Court.
States must also protect the right to life by punishing the perpetrators of arbitrary killings. When an arbitrary killing has been committed within the jurisdiction of a state, the state has the duty to prosecute perpetrators and bring those responsible to justice. According to the Human Rights Committee, some form of criminal proceeding is necessary. As it notes, in the event of a violation of the right to life, disciplinary and administrative measures against those responsible might not fully discharge the state’s international responsibility; it may be obligated to resort to criminal proceedings. The Inter-American Commission dealt with this issue in the Case of the Mariripán Massacre (Colombia), where the state was condemned both for its support to and participation in the massacre of civilians and for not prosecuting or punishing efficiently the authors of the carnage. Reparations ordered by the Court included full investigation in order to find the perpetrators, to identify victims and notify their next of kin.
The unborn child
The protection of the right to life raises the question of whether the unborn child is protected. Article 1 ICCPR, for example, declares that ‘every human being’ has the inherent right to life, while in respect to other rights the expressions used are ‘everyone’ and ‘every person’. This use of different terminology raises the question whether ‘every human being’ has a broader meaning than ‘everyone’ and could therefore be interpreted to include the unborn child. The Human Rights Committee has not commented on this issue directly. However, in both its case-law and its concluding observations, it has found that, for example, the criminalisation of abortion can have implications regarding the right to life. The Committee in this instance was of the view that suicides, which young females commit as a result of failure to perform an abortion due to its criminalisation by the state, may count as violation of the right to life. The Committee has called on states to take ‘all necessary legislative and other measures to assist women, and particularly adolescent girls, faced with the problem of unwanted pregnancies to obtain access to adequate health and educational facilities’ (Concluding Observations on Ecuador (1998)) and to amend their abortion laws to help women avoid unwanted pregnancies and not have to resort to illegal abortions that could put their lives at risk (Concluding Observations on Chile (2007); see also, e.g., Madagascar (2007), Poland (2004) and Mauritius (2005)). The implication of such views is that countries are obliged to carefully analyse the consequences of criminalising abortions. Failure to prevent unnecessary deaths due to anti-abortion laws would raise issues pertaining to the obligation to ensure that everyone enjoys the right to life. In General Comment No. 28 the Committee expresses its view that laws or policies where states impose a legal duty upon health personnel to report cases of women who have undergone abortion constitute a potential violation of the right to life and the prohibition of torture or other cruel, inhuman or degrading treatment or punishment.
The issue of the unborn child is clearer at the Inter-American level. Article 4 ACHR requires the right to life to be protected ‘in general, from the moment of conception’. The Inter-American Commission, however, seems to question whether Article 4 ACHR affords absolute protection of the right to life as this would conflict with most states’ abortion and death penalty legislation (see Baby boy case v. The United States of America (Case 2141)).
In Evans v. The United Kingdom the European Court reaffirmed its earlier practice, choosing not to take a position on whether the right to life extends to the unborn child. It recalled that the issue of when the right to life began came within the margin of appreciation of the state concerned. Under English law an embryo did not have independent rights or interests and could not claim - or have claimed on its behalf – a right to life under Article 2. The Court therefore found that there had not been a violation of Article 2.
The protection of the right to life raises the question whether it includes the right to die. A closely related issue concerns the question of euthanasia and assisted suicide. Euthanasia is the performance of an act by a third party that intentionally causes a person’s death for humanitarian reasons. An example would be giving a patient, upon his/her request, a lethal injection that would end his/her life. On the other hand, Assisted suicide is where the last action that causes death is performed by the person who dies, but with the assistance of another person. An example of this would be a person swallowing an overdose of drugs provided by a doctor. Very few cases have been brought to international supervisory bodies regarding euthanasia; therefore, it remains unclear how it relates to the right to life. So far, it seems, for instance, that Article 2 ECHR does not permit unrestricted euthanasia (see Pretty v. The United Kingdom).
The right to life has been dealt with by all supervisory bodies within the UN and regional systems. The issue on which the most thorough case-law has been developed is the arbitrary deprivation of life.
The Human Rights Committee has confirmed that states have a strict duty not to kill people arbitrarily. It has pointed out that this duty entails a positive obligation for the state to investigate all state killings and punish any improper killings. For example, in the case of Bautista de Arellana v. Colombia the Committee held that ‘purely disciplinary and administrative remedies cannot be deemed to constitute adequate and effective remedies within the meaning of Article 2(3) of the Covenant, in the event of particularly serious violations of human rights, notably in the event of an alleged violation of the right to life’. Therefore, according to the Committee, in the event of serious violations of human rights, such as the right to life, purely disciplinary and administrative remedies cannot be deemed to constitute adequate and effective remedies within the meaning of Article 2(3) ICCPR.
The Committee has also dealt with cases in which the death could not be directly attributed to the action of the police. In Dermit Barbato v. Uruguay, the Committee considered that a state would be in violation of the right to life if either by act or by mission it does not take adequate measures to protect the life of an individual while in custody. In this case, the state was asked to bring any person found to be responsible for the death to justice and to pay appropriate compensation to the family. An interesting feature in this case is that the Committee found it unnecessary to make a finding that state authorities killed the victim. It found a breach of Article 6(1) ICCPR (right to life) on the basis of the state’s failure to take adequate measures to prevent the victim’s death while he was in their custody.
The Committee has recognised the role of law enforcement agents, as far as violating the right to life is concerned, especially in the area of arbitrary killings, which it notes is a matter of utmost gravity. It has recommended that the law must strictly control and limit the circumstances in which a person may be deprived of his/her life by such authorities.
The Committee has dealt with the issue of disappearances in several cases. In Bautista de Arellana v. Colombia, for example, the Committee found that the right to life under Article 6 ICCPR is violated when the state fails to prosecute and punish a person who is known to be responsible for the disappearance and subsequent death of a person. The Colombian government was found to have violated Article 6 ICCPR for only applying disciplinary sanctions to the military officers who caused the death of Bautista de Arellana, a political activist. Moreover, the Committee found a violation of the right to effective remedy on the basis that awarding the family compensation by an administrative tribunal does not constitute adequate and effective remedies within the meaning of Article 2(3) ICCPR in the event of particularly serious violations of human rights (see also Mojica v. Dominican Republic). In Quinteros v. Uruguay, which was brought to trial by the victim’s mother, the Committee found that the mother herself was also ‘a victim of the violations of the Covenant, in particular of Article 7, suffered by her daughter’. Thus, the stress and anguish of the mother caused by the disappearance of her daughter and by the continuing uncertainty concerning her fate amounted to a violation of Article 7 ICCPR. The European Court has also found a violation of Article 3 (ill-treatment) for the ‘anguish and distress’ suffered by relatives of a ‘disappeared person’ (see, e.g., Kurt v. Turkey).
The Committee has mainly dealt with death penalty cases when considering the fairness of trials that result in a death sentence. The Committee has found that any failings in the trial constitute a breach of the right to life as well as provisions in the right to a fair trial (see, e.g., Johnson (Errol) v. Jamaica).
The Committee has followed to a large extent the principle developed by the ECHR in theSoering case. In its General Comment 20 the Committee noted that the death penalty ‘must be carried out in such a way as to cause the least possible physical and mental suffering’. As to the methods of execution, in Ng v. Canada the Committee found that by extraditing Ng to California, Canada had violated Article 7 (prohibition of torture and ill-treatment) because ‘execution by gas asphyxiation may cause prolonged suffering and agony and does not result in death as swiftly as possible, as asphyxiation by cyanide gas may take over ten minutes’. The Committee has stated that for countries that have abolished the death penalty, there is an obligation not to expose a person to the real risk of its application. Thus, in the case of Judge v. Canada, the Committee noted that by deporting the author to the United States where he was under sentence of death, Canada established the crucial link in the causal chain that would make possible the execution of the author and therefore violated Article 6 of the Covenant.
With regard to abortion issues, the Committee has confirmed that abortion is compatible with Article 6 ICCPR and that anti-abortion laws may breach the right to life of the woman. The Committee has examined the issue of euthanasia in very few cases. It expressed its concerns regarding the Act Concerning Review Procedures on Euthanasia and Assisted Suicide in the Netherlands. In its observations, the Committee expressed its view that the ICCPR obliges the state to apply the most rigorous scrutiny to determine whether its obligations to ensure the right to life are being complied with as required by Articles 2 and 6 of the Covenant. It therefore seems that euthanasia and assisted suicide would only be permissible under the ICCPR in extreme circumstances of ‘voluntary and well considered request, unbearable circumstances and where no other reasonable alternative is available’ (see Concluding Observations on The Netherlands (2001)).
At the European level, the ECHR seems to require a similar approach as the ICCPR. InMcCann et al. v. The United Kingdom, the European Court found that the killing of three terrorists suspected of involvement in a bombing mission represented an unjustifiable taking of life, because the authorities did not appropriately plan and control the use of force. In the case of Kaya v. Turkey, the Court found a violation of Article 2 ECHR, read together with Article 1 (duty to secure Convention rights), resulting from the absence of an effective investigation into a death carried out by military forces under contested circumstances. The European Court evaluates the necessity of the use of force as well as the proportionality of such law enforcement actions. In Kakoulli v. Turkey the killing of a civilian by a Turkish soldier amounted to both a substantive and procedural breach of Article 2. The Court ruled in Isayeva, Yusupova and Bazayeva v. Russia that the bombing of a civilian convoy and a village in Chechnya constituted a violation of the right to life and in Nachova and Others v. Bulgaria the Court ruled that the shooting by military police of two Roma conscripts, and lack of an effective investigation, violated the right to life (see also Simsek and Others v. Turkey and Akkum and Others v. Turkey). Meanwhile, no violation was found in Bubbins v. The United Kingdom or in Ramsahai v. The Netherlands where the fatal interventions were held to be ‘absolutely necessary’. The Court reiterated these principles in Turkey, Isaak v. Turkey and Solomou v. Turkey, finding that the use of force was considered unnecessary and therefore in violation of Article 2.
On the issue of omissions, the European Court has reached the same conclusions as the Human Rights Committee. In Taïs v. France the Court found the death of an HIV sufferer in a sobering-up cell at a police station to be a breach of Article 2. Similarly, the state was found to have violated the right to life because of the failure of the police to protect the applicant’s children, eventually killed by their father (Kontrová v. Slovakia).
The European Court has dealt with the death penalty in very few cases. In Soering v. The United Kingdom, which concerned an imminent extradition of the applicant from the United Kingdom to the United States where he feared being sentenced to death and being subjected to the ‘death row’ phenomenon, the Court found that the extradition of a person to a country where he faces the death penalty does not constitute, in itself, a violation the right to life or the right to freedom from torture under the European Convention. The Court found that in this specific case, however, given the very long period of time he would spend on death row and the personal circumstances of the applicant, taking into account his age and mental state at the time of the offence, his extradition to the United States would expose him to a real risk of treatment that would amount to a violation of Article 3. In Öcalan v. Turkey the Court concluded that the imposition of the death sentence on the applicant following an unfair trial by a court whose independence and impartiality were open to doubt amounted to inhuman treatment in violation of Article 3.
In a case concerning abortion, the former European Commission did not exclude the possibility that in certain circumstances the right to life could offer protection to the unborn child, without however specifying what those ‘circumstances’ were (see, e.g., H v. Norway). As matters stand, however, the grounds for an abortion that were approved in individual cases appear to be very wide and capable of covering most cases (see Paton v. The United Kingdom and H v. Norway). In Evans v. The United Kingdom the European Court reaffirmed its earlier practice, choosing not to take a position on whether the right to life extends to the unborn child, recalling that the issue of when the right to life began came within the margin of appreciation of the state concerned.
The Inter-American Court has developed a similar pattern with regard to the right to life, including one of the most important bodies of jurisprudence on disappearances. Although neither the American Declaration nor the American Convention contains an explicit prohibition of this practice, the Court has found in cases against Honduras that the state committed a violation of the right to life because it failed to fulfil its positive obligation to act preventively and showed ‘lack of respect’ for the right to life by virtue of ‘arbitrary’ taking of life by the state, carried out or tolerated by officials. In the landmark Velásquez Rodriguez v. Honduras case, the Court found, inter alia, that there was a systematic practice of disappearances in Honduras between 1981 and 1984 that was ‘carried out or tolerated by Honduran officials’ and that Mr. Velásquez had disappeared within the framework of that practice. The context in which the disappearance occurred and the lack of any information seven years later in regard to his fate created a reasonable presumption that he had been killed. Even if there was a minimal margin of doubt in this respect, it must be presumed that his fate was decided by authorities who systematically executed detainees without trial and concealed their bodies in order to avoid punishment. This, together with the failure to investigate, was a violation by Honduras of the legal duty to ensure to every person subject to its jurisdiction the inviolability of the right to life and the right not to have one’s life taken arbitrarily under Article 4 ACHR. Another important decision regarding disappearances is Bámaca Velásquez v. Guatemala. The case of Huilca v. Peru is another example where a state has been condemned for its responsibilities in a disappearance as well as for the lack of investigation following it. Regarding arbitrary killings, the Case of the Mapiripán Massacre (Colombia) illustrates the will of the Court to punish states for systematic mass murders which are an obvious violation of the core principles of Article 4 ACHR. The Court has further developed the positive obligations regarding the right to life to impose a duty on the state to provide assistance for preserving human life (Villagrán Morales et al. v. Guatemala).
The Inter-American Commission has dealt with the question of the death penalty on many occasions, and has adopted an abolitionist approach in a number of cases. When Peru amended its constitution to add terrorism to the list of crimes where the death penalty would apply, the Commission considered that it was an obvious violation of Peru’s obligations under the American Convention. The Commission has also ruled that the application of the death penalty may constitute cruel, inhuman and degrading treatment (see Report on the Situation of Human Rights in Peru (1993)).
The African Commission has made a number of findings of serious or massive violations of the right to life. Examples of violations include extra-judicial killings, denial of medication to a patient with a serious condition, arbitrary and brutal executions, and a series of detentions and arrests that were found to violate Article 4 ACHPR, even though no loss of life resulted.
With regard to disappearances, the African Commission found in a case against Chad that the state had violated Article 4 ACHPR because it had not attempted to prevent the disappearance or investigate afterwards. It was thus established that the state’s failure to ‘protect’ individuals under its jurisdiction constituted a violation of Article 4 (seeCommission Nationale des Droits de l’Homme et des Libertes v. Chad, Communication 74/92). The Commission has also found violations relating to extrajudicial executions in a number of cases, all of them under Article 4. As an example, in three cases against Malawi, the violation occurred when the police shot and killed peacefully striking workers (see Krishna Achuthan, Amnesty International on behalf of Orton and Vera Chirwa and Amnesty International on behalf of Orton and Vera Chirwa v. Malawi, Communications 64/92, 68/92 and 78/92). In other cases against Sudan, the Commission has also emphasised that a state has the responsibility to protect all persons residing under its jurisdiction, irrespective of whether the executions were committed by government forces (see Amnesty International, Comité Loosli Bachelard, Lawyers Committee for Human Rights and Association of Members of the Episcopal Conference of East Africa v. Sudan, Communications 48/90, 50/91, 52/9 and 89/93).
As to the death penalty, the Commission found in a case against Nigeria that even though Article 4 does not favour any side in the death penalty debate, the trial itself in the case violated Article 7 ACHPR, making the subsequent imposition of the death penalty arbitrary and in violation of Article 4 ACHPR (see, e.g., International Pen, Constitutional Rights Project, Interights on behalf of Ken Saro-Wiwa Jr. and Civil Liberties Organisation v. Nigeria, Communications 137/94, 139/94, 154/96 and 161/97). More recently, the Commission dealt with the issue of the death penalty in the Taba Bombings Case (not decided in November 2008). The Commission called on the Egyptian state to stay the execution of three men accused of the bombings of Red Sea resorts in 2004. A claim was made to the Commission for reasons including torture in detention, failure to meet fair trial standards and the lack of a right of appeal from a sentence of death.
B. The right to freedom from torture or cruel, inhuman or degrading treatment or punishment
In all societies there is agreement that torture is a human rights violation that is not to be tolerated. Under human rights law and humanitarian law, freedom from torture is a right protected under all circumstances - in times of internal or international disturbances, under a formal state of emergency and in war situations. Although torture, in all its different forms, still occurs frequently worldwide, it can be argued that the prohibition of torture has attained the status of international customary law.
The basic formula, ‘torture or cruel, inhuman or degrading treatment or punishment’, was coined by Article 5 UDHR. All subsequent human rights treaties contain a similar prohibition. Although it was not the intention of the drafters of the Universal Declaration to differentiate between the different components of this right, the practice of some of the supervisory bodies, in particular the European Court, has made it necessary to distinguish between them. Before discussing the main components included in this right, a few points need to be emphasised. Firstly, with regard to each component, the prohibition is absolute and non-derogable even in a situation of public emergency. Secondly, any recourse to torture or cruel, inhuman or degrading treatment or punishment is prohibited, even if it is demonstrated that law and order cannot be maintained without such recourse (see, e.g., Tyrer v. The United Kingdom). Finally, the victim’s conduct is irrelevant, and there is no justification for using torture or cruel, inhuman or degrading treatment or punishment because of a suspicion, however well-founded, that a person may be involved in criminal activities (see, e.g., Aydin v. Turkey).
A definition of torture is found in Article 1 CAT:
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 intimidation 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.
Moreover, case-law and general comments by international and regional courts and human rights organisations are invaluable sources in defining what kind of acts are considered torture. One definition often used by international human rights organs and courts is ‘an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment’, with the purpose to obtain information or confessions (see, e.g., in the European Court, Denmark, Norway, Sweden and The Netherlands v. Greece). Thus, for torture to occur, certain criteria must be met, such as: a) the method used must be degrading treatment; b) it must be inhuman treatment; c) it must be an aggravated form of inhuman treatment, inflicted for specific purposes; and d) it must reach a certain level of severity.
Defining cruel, inhuman, or degrading treatment or punishment
No definition exists concerning cruel, inhuman, or degrading treatment or punishment, as it is very difficult to draw sharp distinctions between the different forms of treatment or punishment. According to the Human Rights Committee, these distinctions depend on the nature, purpose and severity of the particular treatment. The Committee has, for instance, concluded in Larrañaga v. The Philippines, notably referring to the Öscalan case of the European Court, that the imposition of a death sentence after proceedings which do not fulfil fair trial requirements amounts to inhuman treatment. In KL v. Peru the Committee deemed that the denial of a therapeutic abortion to a girl pregnant with a fatally impaired foetus constituted inhuman and degrading treatment. The Committee’s decision hinged on the fact that carrying an impaired foetus and losing the child soon after birth caused the mother immense mental distress that was foreseeable and preventable. The European Court, moreover, has observed that ill-treatment must attain a minimum level of severity if it is to fall within the scope of the prohibition. The assessment of this minimum is relative as it depends on the circumstances of the case. Different factors are relevant here, such as: a) the duration of the treatment; b) its physical or mental effects; and c) the age, sex, and state of health of the person. It seems then that in order to decide whether torture or cruel, inhuman, or degrading treatment or punishment has occurred, it is important to apply both an objective and a subjective test. Treating a young and healthy adult in a certain way might amount to degrading treatment; the same treatment, however, might amount to torture if inflicted on a child or an elderly person.
Article 5 UDHR states that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. The CAT is considered today the most authoritative international legal standard on the subject of torture. Articles 1 to 16, which are the substantive articles, relate not only to torture but also refer to other forms of cruel, inhuman or degrading treatment or punishment. State obligations under this Convention include, inter alia, the following: a) no statement made under pressure of torture may be invoked as evidence in any proceedings (Article 15); and b) every state party is obliged to institute legal proceedings against anyone who is alleged to have committed acts of torture, not only against persons who have committed such acts on its territory, but also against foreigners who have committed such acts elsewhere (Articles 6 and 7).
Article 7 ICCPR provides protection against torture, or cruel, inhuman or degrading treatment or punishment. In its General Comment 20, the Human Rights Committee notes that it is the duty of states parties to afford everyone protection through legislative and other measures against the acts prohibited by Article 7, ‘whether inflicted by people acting in their official capacity, outside their official capacity or in a private capacity’. This prohibition extends to corporal punishment, including excessive chastisement ordered as punishment for a crime or as an educative or disciplinary measure. States parties must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement. The Optional Protocol to the Convention Against Torture is also worth mention; it establishes a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture or other cruel, inhumane or degrading treatment or punishment.
The CRC provides protection in all areas of importance in order for a child to have a meaningful and dignified existence. Article 37(a) provides protection against torture, or other cruel, inhuman or degrading treatment or punishment, and emphasises that capital punishment and life imprisonment without possibility of release may not be imposed on persons below 18 years of age. Article 10 CMW prohibits torture or cruel, inhuman or degrading treatment or punishment and Article 15 prohibits torture or cruel, inhuman or degrading treatment or punishment, expressly prohibiting medical or scientific experimentation without the person’s free consent.
At the regional level, Article 3 ECHR and Article 5(2) ACHR contain a prohibition against torture and other forms of ill-treatment though the wording is quite different. Both Conventions set out that no one shall be subjected to torture or to inhuman or degrading treatment or punishment, a general negative obligation, but the ACHR then adds that ‘Everyone has the right to have his physical, mental and moral integrity respected’, stressing that the obligation of the state is not only to refrain from torture and ill-treatment, but also to respect the dignity of the person. At the Inter-American level a specific Convention on torture was adopted in 1985. The Inter-American Convention to Prevent and Punish Torture expands upon the provisions of Article 5 ACHR, which prohibits torture and cruel, inhuman or degrading punishment or treatment and can be invoked before the Inter-American Court to interpret the provisions of Article 5 ACHR. The Convention contains a definition of torture (Article 2) that is broader than the one contained in Article 1 CAT, potentially encompassing more acts of coercion than are covered by the CAT definition.
Article 5 ACHPR essentially protects dignity. A non-exhaustive list of practices that could lead to the violation of dignity is provided and torture and cruel, inhuman and degrading punishment are explicitly listed as examples.
The European Committee for the Prevention of Torture (ECPT) has, since its establishment in 1989, developed a number of standards aimed at protecting detainees from torture and inhuman or degrading treatment or punishment. These cover a range of matters such as solitary confinement, discipline, contact with the outside world, and complaints and inspection procedures (see II§2.C).
In addition to the main international human rights Conventions, other instruments have been adopted which are relevant to the protection against torture, such as the four Geneva Conventions (1949) which contain a common Article 3, under which torture and humiliating and degrading treatment is prohibited in international as well as internal armed conflicts; the Standard Minimum Rules for the Treatment of Prisoners (1955); and the Principles of Medical Ethics Relevant to the Role of Health Personnel (1982), which protect prisoners and detainees against torture and other cruel, inhuman or degrading treatment or punishment. In addition, Article 5 of the Statute of the International Criminal Tribunal for the Former Yugoslavia (1993), which also applies for the International Criminal Tribunal for Rwanda (1993), sets out how acts of torture can be prosecuted as crimes against humanity. Article 7 of the Rome Statute for the International Criminal Court (1998) also establishes that torture can constitute a crime against humanity.
With regard to standards prohibiting torture, emphasis should be placed on the principle of non-refoulement and the conditions of imprisonment or detention.
A special aspect of the right to freedom from torture is the concept of non-refoulement (that is, ‘non-return’), an established principle of customary international law that prohibits states from expelling, deporting or extraditing persons to countries where they face torture or ill-treatment. Non-refoulement is a fundamental rule of international refugee law and several human rights instruments forbid the return of a person who has reason to fear for his/her life or physical integrity in his/her country of origin. Article 3 CAT stipulates that states may not expel, return (refouler) or extradite persons to countries where they are in danger of being subject to torture and stipulates that states have a duty to take into account all relevant considerations when determining whether there are grounds to believe that the person is in danger. Article 33 of the Convention relating to the Status of Refugees also contains the principle of non-refoulement. Although not explicitly set out in Article 7 ICCPR, the Human Rights Committee has deduced from that article that states are obliged not to expose persons to ‘the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement’ (General Comment 20, para. 6).
A number of regional instruments also forbid states to expel persons in danger of being subjected to torture. Article 22(8) ACHR states that ‘in no case may an alien be deported or returned to a country, regardless of whether or not it is his country of origin, if in that country his right to life or personal freedom is in danger of being violated because of his race, nationality, religion, social status, or political opinions’. Article 2(3) of the Convention Governing the Specific Aspects of Refugee Problems in Africa stipulates that states may not subject persons to measures such as rejection at the frontier, return or expulsion, which would compel them to return to or remain in a territory where their life, physical integrity or liberty would be threatened for reasons of race, religion, nationality, membership of a particular social group or political opinion. Article 12(3) ACHPR further establishes the rights of persons to asylum ‘when persecuted’. Under the auspices of the CoE, there is no explicit prohibition of return, but Article 3 (prohibition of torture) ECHR implies this prohibition.
In 2006, in response to evidence surfacing regarding ‘extraordinary rendition’, the apprehension and extrajudicial transfer of a person from one state to another in order to submit him or her to harsh interrogation techniques that in some instances amount to torture, the Sub-Commission on the Promotion and Protection of Human Rights published ‘An updated framework draft of principles and guidelines concerning human rights and terrorism’. This report states that ‘No person shall be transferred to any State unless there is a verifiable guarantee that there will be full protection for all human rights in the receiving State. Diplomatic assurances by the receiving State are insufficient to prove that the transferred person’s rights would be fully respected. Until the person’s status is fully settled in accordance with all applicable international and national law, the transferring State remains liable for that person.’ On this issue, the Human Rights Committee noted in its Concluding Observations to the United States (2006) that ‘in practice the State Party appears to have adopted a policy to send, or to assist in the sending of, suspected terrorists to third countries [?], for purposes of detention and interrogation without the appropriate safeguards to prevent treatment prohibited by the Covenant.’ The Committee expressed its concern based on ‘numerous well publicized and documented allegations that persons sent to third countries in this way were indeed detained and interrogated while receiving treatment grossly violating [?] Article 7.’ The Committee urged the state to take ‘all necessary measures’ to ensure that international human rights and humanitarian laws are respected.
Conditions of imprisonment or detention
A group that is especially vulnerable to violations of the right to freedom from torture and ill-treatment are persons detained by the state. Detainees do not enjoy the right to freedom of movement and they are not given a choice regarding their place of detention. Their contact with the outside world is limited and highly regulated. Prisoners, for instance, must submit to the discipline of prison life and to rules regulating their behaviour and treatment. To protect those in custody several basic rules have been formulated. The ICCPR (Article 10) and the American Convention (Article 5) are the main international human rights Conventions containing specific provisions concerning the rights of prisoners. They include the following minimum requirements: a) all individuals deprived of their liberty are to be treated with respect for the inherent dignity of the human person; b) accused persons should be kept separated from convicted persons; c) juveniles (or minors in the case of Article 5 American Convention) must be separated from adults and brought to trial as speedily as possible (before ‘specialised tribunals’ in Article 5 American Convention); and d) the penitentiary system should aim at the reformation and social rehabilitation of convicted prisoners.
At the European level, the European Convention for the Prevention of Torture is significant with respect to the protection of prisoners. Under the Convention, the European Committee for the Prevention of Torture (ECPT) was created ‘to examine the treatment of persons deprived of their liberty with the view to strengthening, if necessary, the protection of such persons from torture and from inhuman or degrading
treatment or punishment’. The ECPT has the power to visit places of detention of any kind including prisons, police cells, military barracks and mental hospitals, with the aim of examining the treatment of detainees and, when appropriate, to make recommendations to the states concerned. A similar mechanism is found under CAT in the form of an additional protocol, which has not yet entered into force (see II§1.C).
Other documents have been drafted, mainly at the UN level, elaborating standards for the improvement of the situation of prisoners. The Standard Minimum Rules for the Treatment of Prisoners, first adopted in 1955, set out in great detail the minimum conditions acceptable in the treatment of prisoners, including those under arrest or awaiting trial, or arrested and imprisoned without charge. Among the requirements are: a) minimum floor space and cubic content of air for each prisoner; b) adequate sanitary facilities; c) clothing which in no manner should be degrading or humiliating; d) a separate bed; and e) food of adequate nutritional value. These minimum requirements should always be complied with, regardless of the financial situation of the state concerned. While the rules set are not referred to in Article 10 ICCPR or Article 5 American Convention, they are intended to be taken into account whenever applicable. Other relevant UN standards include the following: the Code of Conduct for Law Enforcement Officials (1978); the Principles of Medical Ethics Relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (1982); and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (1988).
The International Convention for the Protection of All Persons from Enforced Disappearance gives precise guidelines on rights of detained persons in Article 17, especially designed to protect individuals from secret detentions and the abuses that would follow from such detention. It also confirms that state parties must ‘guarantee that any person deprived of liberty shall be authorized to communicate with and be visited by his or her family, counsel or any other person of his or her choice, subject only to the conditions established by law, or, if he or she is a foreigner, to communicate with his or her consular authorities, in accordance with applicable international law.’
The rights of detained persons are not limited to those in prison, but apply to anyone deprived of liberty under the laws and authority of the state, whether such person is held in a hospital, in particular a psychiatric hospital, a detention camp, a correctional institution, or elsewhere.
Detention conditions, such as overcrowding; denial of food or inadequate quality and quantity of food; inadequate heating or toilets; denial of contact with the outside world; lack of clean drinking water; no ventilation or electric lighting; denial of exercise; and denial of medical treatment or inadequate medical attention may amount to a violation of the prohibition of torture and other cruel, inhuman and degrading treatment or punishment. While the cumulative effects of harsh conditions rarely amount to ‘torture’, the threshold for inhuman or degrading treatment is lower; that is, the treatment need not have been intended to cause suffering for it to constitute inhuman or degrading treatment.
It is important to note that in order to assess the conditions of detention the supervisory bodies take account of the cumulative effect and the duration of the conditions as well as the specific allegations. It is also important to stress that even when the administration of prisons or psychiatric hospitals is in the hands of private companies or corporations it is the state that is ultimately responsible for the protection of human rights and accountable for any mistreatment suffered by individuals in the institutions.
Within both the UN and the regional systems, there are several supervisory mechanisms that can be used to consider issues related to torture, such as CAT, the Human Rights Council Special Rapporteur on Torture and the Human Rights Committee. At the regional level the European Court and Committee for the Prevention of Torture, the African Commission and the Inter-American Court and Commission are charged with supervising compliance. Nevertheless, the frequency with which torture still occurs is discouraging and further measures to supervise and enhance implementation are called for.
At the UN treaty-based level, CAT established the Committee Against Torture, which supervises the compliance of states parties through four means: review of periodic reports, inter-state complaints, individual complaints and a confidential inquiry into systematic practices of torture (see II§1.C). The latter one is the most innovative supervisory procedure, allowing the Committee to initiate an inquiry when it receives ‘reliable information’ that suggest ‘well-founded indications that torture is being systematically practised in the territory of a state party’. After consulting the state party, the Committee may decide to include a summary account of the results of the proceedings in its annual report to the General Assembly. The OPCAT provides for in-situ monitoring, by means of regular country visits and National Preventive Mechanisms (NPMs).
The UN Commission on Human Rights decided in 1985 to appoint a Special Rapporteur to examine questions relevant to torture, to seek and receive credible and reliable information on such questions and to respond effectively to the information. The mandate, assumed by the Human Rights Council, comprises three main activities: a) transmitting communications consisting of urgent appeals and allegation letters to governments; b) undertaking fact-finding missions to countries where information suggests that torture may involve more than isolated or sporadic incidents; and c) submitting annual reports on the Special Rapporteur’s activities, mandate and methods of work to the Council and the General Assembly. Unlike the treaty monitoring bodies established under international treaties, the Special Rapporteur does not require the exhaustion of domestic remedies before acting on individual cases involving a risk of torture or on alleged acts of torture. Moreover, when the facts in question come within the scope of more than one mandate, the Special Rapporteur may decide to approach one or more thematic mechanisms and country rapporteurs with a view to sending joint communications or seeking joint missions.
At the regional level, many cases have come before the European Court and the former European Commission concerning Article 3 ECHR. In one of its inter-state cases, Ireland v. The United Kingdom, the Court condemned the ill-treatment of suspected terrorists during interrogation, with the result that the United Kingdom government had to introduce new rules concerning the interrogation of detainees. In individual cases, the Court has found a violation of Article 3 in cases concerning, for example, a) the practice of beating children as a punishment in schools (see, e.g., Campbell and Cosans v. The United Kingdom); b) risk of being tortured in the event of being expelled to another country (see, e.g., Cruz Varas et al. v. Sweden); c) conditions of detention in a psychiatric hospital (see, e.g., Herczegfalvy v. Austria); and d) physical violence during police custody (see, e.g., Tomasi v. France).
In the case of Nevmerzhitsky v. Ukraine, the Court found the methods used (forced feeding with handcuffs and mouth-widener) as a reaction to a hunger strike amounted to torture and established in Sarban v. Moldova that the inadequacy of the material conditions and medical treatment can fall under the definition of torture, or inhuman or degrading treatment (Paladi v. Moldova, Popov v. Russia, Melnik v. Ukraine, Boicencov. Moldova). The same conclusion was reached in Riviere v. France where the Court found that the mentally ill applicant’s continued detention without medical supervision appropriate to his current condition entailed particularly acute hardship and caused him distress or adversity of an intensity exceeding the unavoidable level of suffering inherent in detention. It accordingly concluded that he had been subjected to inhuman and degrading treatment on account of his continued detention in such conditions. The Court ruled in Mubilanzila Mayeka and Kaniki Mitunga v. Belgium that the detention and expulsion of a five-year old girl was a violation of Article 3. In the case of Oya Ataman v. Turkey however, the use of pepper spray to disperse demonstrators was not held to be a violation of Article 3.
The ECPT’s work concentrates on examining day-to-day conditions in which detainees are held, including such matters as accommodation, personal hygiene and medical services. During its visits, the ECPT has observed that treatment in places of detention varies greatly, ranging from mild forms of ill-treatment to torture. The Committee makes so-called Public Statements setting out its findings.
At the Inter-American level, both the Inter-American Commission and Court have dealt with many torture cases. Neither institution has attempted to define torture, but instead they have identified that certain practices, such as rape, mock burials, mock executions, isolation and incommunicado detention, deprivation of food and water and exposure to the torture of others, fall within the concept of torture and ill-treatment (see, e.g.,Lissardi and Rossi v. Guatemala, Loayza Tamayo v. Peru and Velásquez Rodriguez v. Honduras). In certain cases, moreover, the Court has stated that the very act of causing the disappearance of the victim amounts to torture, inhuman and degrading treatment, not only with respect to the victims, but also with respect to their close relatives (see, e.g., Villagrán Morales et al. v. Guatemala). For a comprehensive analysis regarding torture see Cantoral Benavides v. Peru. In Caesar v. Trinidad and Tobago the Court examined for the first time the compatibility of corporal punishment with the American Convention. It concluded that corporal punishment is impermissible, in times of both war and peace, and thus states parties, in compliance with obligations derived from Articles 5 and 1, have an erga omnes duty to abstain from imposing corporal punishment, as well as to prevent its imposition as it always constitutes, cruel, inhuman and degrading treatment. The Court held that ‘judicial corporal punishment’ in the form of flogging constitutes a form of torture within the meaning of the Convention.
The case-law of the Inter-American and African systems is limited in regard to non- refoulement. However, the Inter-American Commission expressed its views on non-refoulement in its report, ‘Extension of Precautionary Measures Regarding Detainees in Guantanamo Bay, Cuba’ in 2005. In this report, the Commission requested that the United States ‘take the measures necessary to ensure that any detainees who may face a risk of torture or other cruel, inhuman or degrading treatment if transferred, removed or expelled from Guantanamo Bay are provided an adequate individualized examination of their circumstances through a fair and transparent process before a competent, independent and impartial decision-maker. Where there are substantial grounds for believing that he or she would be in danger of being subjected to torture or other mistreatment, the State should ensure that the detainee is not transferred or removed and that diplomatic assurances are not used to circumvent the State’s non refoulement obligation.’ Several cases have been brought before the Human Rights Committee and the European Court. The Human Rights Committee has dealt with this issue in, e.g., A. v. Australia and C. v. Australia and more recently in Alzery v. Sweden where the diplomatic assurances where not held to be sufficient to rule out the risk of ill-treatment.
The Committee against Torture has developed an extensive jurisprudence on the principle of non-refoulement (e.g., Mutombo v. Switzerland; Alan v. Switzerland; Kisoki v. Sweden; Khan v. Canada and Aemei v. Switzerland). It established core principles in the case of Agiza v. Sweden. In its decision, the Committee acknowledged that ‘measures taken to fight terrorism, including denial of safe haven, deriving from binding Security Council Resolutions are both legitimate and important. Their execution, however, must be carried out with full respect to the applicable rules of international law, including the provisions of the Convention, as affirmed repeatedly by the Security Council.’ The Committee observed that the issue of refoulement must be decided ‘in the light of the information that was known, or ought to have been known, to the State party’s authorities at the time of the removal.’ The Committee went on to say that ‘additional grounds must exist to show that the individual concerned was personally at risk. Similarly, the absence of a consistent pattern of gross violations of human rights does not mean that a person could not be considered to be in danger of being subjected to torture in his or her specific circumstances.’ In its 2006 conclusions and recommendations directed towards the USA, the Committee expressed its concern that the non-refoulement obligation was not extended to ‘a person detained outside its territory’, as well as regarding ‘the State party’s rendition of suspects, without any judicial procedure, to States where they face a real risk of torture.’ The Committee then urged the Government to ‘apply the non-refoulement guarantee to all detainees in its custody.’
The European Court has established that Article 3 entails the principle of non-refoulement and has dealt with several cases. The prohibition of return is unconditional. In cases where the state is purporting to extradite or deport persons guilty of serious crimes or persons that are considered a danger to national security, it must be assured that those persons are not facing torture in the receiving countries. If not, it may be found in breach of Article 3 (see, e.g., Chahal v. The United Kingdom; D. v. The United Kingdom; and Ahmed v. Austria). In refoulement cases the Court seeks to find evidence that the claimant runs a risk of being subjected to ill-treatment by the authorities. Generally, no violation will be found if the threat emanates from other actors (see Said v. The Netherlands and Bader and Kanbor v. Sweden), although N v. Finland is an exception. In this case the Court found that the applicant would run a substantial risk of treatment contrary to Article 3 if expelled to the Democratic Republic of Congo, adding that the risk of ill-treatment to which the applicant would be exposed might not necessarily emanate from the current authorities but rather from relatives of dissidents who might seek revenge for the applicant’s past activities in the service of President Mobutu. In the recent case of Saadi v. Italy the Court firmly reasserted the absolute nature of Article 3 and non-refoulement - also when the individual might pose a threat to the hosting state. Several human rights instruments contain provisions setting out interim measures that the supervisory bodies can call for to avoid irreparable damage to persons in a matter that has not yet been submitted to them for consideration. Interim measures have been requested in numerous cases concerning expulsion of foreigners and refoulement. For instance, in Mamatkulov and Askarov v. Turkey the state extradited the applicants despite the Court’s request for interim measures, and was found to have violated Article 34 of the ECHR. The Committee Against Torture and the Human Rights Committee have dealt with refoulement in Agiza v. Sweden and Alzery v. Sweden, respectively.
In regard to conditions of imprisonment, at the UN level there is an important body of case-law. The Human Rights Committee found violations of Article 7 in respect to prison conditions in many cases against Uruguay (see, e.g., Buffo Carballal v. Uruguay andVasilskis v. Uruguay) and in more recent cases against Jamaica (see, e.g., Francis (Clement) v. Jamaica, Francis (Victor) v. Jamaica and Young v. Jamaica). In Mukong v. Cameroon, the Committee noted that ‘certain minimum standards regarding the conditions of detention must be observed regardless of the State party’s level of development’. The Committee has also noted that ‘prolonged solitary confinement [?] may amount to acts prohibited by article 7’ (General Comment 20). In Medjnoune v. Algeria the Committee found the incommunicado detention of the applicant, his apprehension, continued captivity and his inability to communicate with his family and the outside world constituted a violation of Article 7. Another case worth mentioning in regard to conditions of imprisonment is Lantsova v. Russia, although in this case the Committee did not consider it necessary to pronounce itself on Article 7. The Committee has held that Article 10 ICCPR is violated, inter alia, when a prisoner: a) is held incommunicado for any length of time; b) is beaten by prison wardens; c) is shackled and blind-folded; d) is displayed to the press in a cage; e) is refused medical attention; f) is subjected to ridicule; g) is denied reading facilities and is not allowed to listen to the radio; h) is required to sleep on a wet concrete floor, or to share a mattress; or i) is kept in a cell with electric light continuously on (see, e.g., Drescher Caldas v. Uruguay;Solorzano v. Venezuela; Espinoza de Polay v. Peru; Kalenga v. Zambia; Francis v. Jamaica; Almirati Nieto v. Uruguay; Manera Lluberas v. Uruguay).
At the Inter-American level, the Inter-American Court has especially examined conditions of imprisonment in, inter alia, the decision on provisional measures in the case of the Urso Branco Prisons v. Brazil and its report on the Challaplaca Prison in Peru (Special Report on the Human Rights Situation at the Challapalca Prison, 2003). Both the Commission and the Court have tended to deal with all the provisions of Article 5 without separating its different components. Thus, the jurisprudence of the Inter-American Commission and Court in relation to prisoners is not comprehensive. Nevertheless, in a few cases involving prisoners in El Salvador, the Commission found that El Salvador had violated the ‘respect for the inherent dignity of the human person’ guaranteed in Article 5(2) because of a) overcrowding; and b) lack of minimum services in prisons (see IACHR Annual Report 1994). Similar concerns were expressed with regard to Cuban prisons, although Article 5(2) was not specifically mentioned (see ‘Report on Cuba’ in IACHR Annual Report 1994). See also Minors in Detention v. Honduras, Children’s Rehabilitation case and Castillo Petruzzi et al. v. Peru).
The European Court has dealt with the treatment of detainees in, for example, the Grand Chamber judgement in the case of Aktaş v. Turkey in respect of the death of the applicant’s brother in police custody and the deficiencies of the investigation into his death. The Court inferred that the suffering inflicted on him had been particularly serious and cruel. It was also reasonable to infer that the purpose had been to obtain information or a confession of guilt and therefore appropriate to find that he had been tortured. A recent line of cases decided by the Court brought clearer principles on key issues relating to the conditions of imprisonment. In Ramirez Sanchez v. France the fact that the applicant (the terrorist ‘Carlos’) had been kept in solitary confinement for over eight years was at issue. The Court held that, since it accepted that the detention of ‘one of the world’s most dangerous terrorists’ could lead the French authorities to take extraordinary security measures, and as the applicant had not been kept in complete sensory or social isolation, the length of his confinement did not constitute inhumane or degrading treatment. In Mubilanzila Mayeka and Kaniki Mitunga v. Belgium the detention of a five-year-old child without her family in a centre for adults, followed by deportation, amounted to cruel and inhuman treatment. Detention in an overpopulated facility, confinement and lack of food and water was a violation of Article 3 (Ladik,is v. Latvia). The European Committee on the Prevention of Torture (ECPT) has produced a substantial number of reports, out of which annually a general report is produced. This report has gradually led to a number of general standards being developed, notably as regards prison health care, juvenile detention, treatment of foreign nationals and the situation of women in prisons.
The African Commission has dealt with violations of the prohibition of torture under Article 5 ACHPR, which deals not only with torture and other forms of ill-treatment, but also with the dignity of the person. As a consequence of this, the Commission has often found violations of Article 5 on the basis of torture, without however providing information on what acts amounted to the torture. The Commission has found that the cumulative effects of certain aspects of imprisonment can amount to violations of Article 5, such as overcrowding, beatings, excessive solitary confinement, incommunicadodetention without trial, extreme quality of food, shackling within a cell and denial of access to adequate medical care (see, e.g., Institute for Human Rights and Development in Africa v. Republic of Angola, Communication 292/2004, Krischna Achutan (on behalf of Aleke Banda), Amnesty International on behalf of Orton and Vera Chirwa and Amnesty International on behalf of Orton and Vera Chirwa v. Malawi, Communications 64/92, 68/92 and 78/92 and International Pen, Constitutional Rights Project, Interights on behalf of Ken Saro-Wiwa Jr. and Civil Liberties Organisation v. Nigeria, Communications No. 137/94, 139/94, 154/96 and 161/97, Article 19 v. Eritrea, Communication 275/2003).
UNITED NATIONS VOLUNTARY FUND FOR VICTIMS OF TORTURE
The physical and psychological effects of torture can be devastating and last for years, affecting not only the victims but also members of their families. Assistance in recovering from the trauma suffered can be obtained from organisations that specialise in assisting victims of torture. In 1981, the UNGA established the UN Voluntary Fund for Victims of Torture to receive voluntary contributions for distribution to NGOs that provide humanitarian assistance to victims of torture and members of their families. The Fund is administered by the UN Secretary-General on the advice of a Board of Trustees.
The Fund partially subsidises projects providing medical, psychological, social, economic, legal or other forms of humanitarian assistance to torture victims and members of their families. Each year, the Fund finances projects to assist more than 60,000 victims and their family members from all over the world. Subject to the availability of funds, it also subsidises a limited number of projects to train health professionals and others on how to provide specialised assistance to victims of torture. In 2007, grants were approved totalling US$9 million to some 101 projects of NGOs assisting victims of torture and members of their families.