In cases where protection measures apply to one or more individuals, these are referred to as Mr. / Ms. X, Y, Z, etc. or, just as some specific locations are referred to as X, Y, Z, etc.I. Introduction
The present document is submitted by the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez, to the Human Rights Council, pursuant to its resolution 25/13.
In the present addendum, the Special Rapporteur provides observations, where considered appropriate, on communications sent to States between 1 December 2014 and 30 November 2015, as well as on responses received from States in relation to these communications until 31 January 2016. In some instances and where appropriate, observations are provided to older communications which received a late reply within the above-named date range, as well as communications with updated replies following the request of the Special Rapporteur (see additional observations). Communications sent and responses received during the reporting period are accessible electronically through hyperlinks.
The Special Rapporteur is grateful to all States, which have transmitted responses to communications sent. He considers response to his communications an important part of cooperation by States with his mandate. In this context, the Special Rapporteur recalls paragraph 2(a) of the Human Rights Council resolution 25/13 which urges States to “fully cooperate with and assist the Special Rapporteur in the performance of his or her task, to supply all necessary information requested by him or her and to fully and expeditiously respond to his or her urgent appeals, and urges those Governments that have not yet responded to communications transmitted to them by the Special Rapporteur to answer without further delay.”
The communications and the relevant replies can also be accessed via the encorporated links or in the communications reports of Special Procedures A/HRC/29/50 (communications sent, 1 December 2014 to 28 February 2015; replies received, 1 February to 30 April 2015), A/HRC/30/27 (communications sent, 1 March to 31 May 2015; replies received, 1 May to 31 July 2015) and A/HRC/31/79 (communications sent, 1 June to 30 November 2015; replies received, 1 August 2014 to 31 January 2016).
The Special Rapporteur on torture has made follow-up one of his priorities during his six year term. The Special Rapporteur has initiated a study to better understand the impact the communications procedure has on victims of torture and those subjected to cruel, inhuman or degrading treatment or punishment and how to further improve the effectiveness of this mechanism (including Observation reports) to prevent violations, protect victims from further violations and encouraging timely and substantive responses from the State concerned to ensure accountability.
The Special Rapporteur has received input from the Secretariat of the Special Procedures Branch and the Registry of the Office of the High Commissioner for Human Rights (OHCHR). Further, in September 2015, the Special Rapporteur sent a letter and questionnaire to non-government organizations at the international, regional and national level, who had submitted information over the past two years which formed the basis of a communication that was sent and subsequently reflected in the Special Rapporteur’s 2014 and 2015 Observations Reports, presented to the Human Rights Council, A/HRC/25/60/Add.2 and A /HRC/28/68/Add.1 respectively. The Special Rapporteur extends his appreciation to the non-government organizations who responded with detailed information about the communication process and follow up information on individual cases and what, if any, action taken by the State to address any violation. The information gathered is being verified and analysed. The results will also be submitted and considered in the systemic review of the communications procedure being undertaken by Special Procedures mandate holders as reported in the Annual Report of Special Procedures (A/HRC/31/39 paras. 11 and 52). The Special Rapporteur hopes that the conclusions and recommendations from this study could help identify ways to improve follow-up on cases, have a greater impact for the victim, increase the effectiveness of communications and observations and identify practices that may also be of assistance to the working methods of Special Procedures more generally.
II. Observations by the Special Rapporteur
AL 01/03/2013 Case No ARG 2/2013 State Reply: 29/05/2013, 29/05/2013, 29/05/2013, 29/05/2013, 10/06/2013, 10/06/2013, 26/06/2013, 26/06/2013, 26/06/2013, 26/06/2013,26/06/2013, 26/06/2013, 26/06/2013, 26/06/2013, 26/06/2013, 26/06/2013, 19/08/2014, 11/03/2015Alegados actos de tortura y consecuente asesinato del Señor Damián Alejandro Sepúlveda cometido por agentes oficiales de una comisaría de General Madariaga, en la Provincia de Buenos Aires
El Relator Especial agradece al Gobierno de Argentina sus respuestas a la comunicación conjunta con otros procedimientos especiales, de fecha 1 de marzo de 2013 la cual versaba sobre los alegatos de tortura y consecuentemente asesinato del Sr. Damian Sepúlveda mientras se encontraba detenido en la comisaría de General Madariaga, en la Provincia de Buenos Aires. El Relator Especial aprecia el esfuerzo del Gobierno en responder detalladamente a las inquietudes, obligaciones y preguntas presentadas en la comunicación inicial, así como todos los esfuerzos realizados para esclarecer los hechos sucedidos, en especial la apertura de la Investigación Penal Preparatoria Nro. 03-03-322-12, y la decisión de practicar una nueva autopsia, la cual fue realizada el día 8 de febrero de 2013 para determinar las verdaderas causas de la muerte del Señor Damián Alejandro Sepúlveda. Posteriormente, en cumplimiento de su deber de enjuiciar y sancionar a los responsables, el gobierno provincial procedió a la desafectación del servicio de las personas que tenían bajo su responsabilidad el cuidado y control de los detenidos, en especial del Sr. Damián Sepúlveda. Aunque las medidas disciplinarias como la mencionada son importantes, la obligación internacional del Estado en relación con un grave acto de tortura seguido de muerte es investigar, procesar y sancionar penalmente a los responsables. El Relator solicita al Gobierno muy respetuosamente que lo tenga informado sobre el curso de las actuaciones penales respectivas.
En este contexto, el Relator Especial en contra de la Tortura quisiera recordar al Gobierno de Argentina el párrafo 7 (e) de la Resolución 16/23 del Consejo de Derechos Humanos el cual insta a los Estados a que, “velen por que las víctimas de la tortura o de otros tratos o penas crueles, inhumanos o degradantes obtengan reparación y reciban una indemnización justa y adecuada […]”. Además hacemos un llamado al Estado a tomar las medidas necesarias para que estos hechos no se repitan.
JAL 03/07/2015 Case No. ARM 1/2015 State Reply: 31/08/2015 and 06/10/2015 Allegations concerning the excessive use of force by the police to disperse a peaceful demonstration in Yerevan, and the subsequent arrest and detention of demonstrators, journalists, and human rights monitors.
The Special Rapporteur thanks the Government of Armenia for its reply, dated 31 August 2015, to the present communication.
The Special Rapporteur welcomes the information provided by the Government regarding the initiation of criminal investigations into victims’ complaints by the Special Investigation Service, which are ongoing, and regarding internal investigations by the police department, which have led to disciplinary sanctions being applied to 12 officers who have been suspended pending the completion of the criminal investigations. The Special Rapporteur however finds that the Government, in its reply, does not sufficiently address the allegations of the use of physical violence against demonstrators, including claims that 22 individuals had to receive medical treatment, including one suffering from serious head injuries.
The Special Rapporteur welcomes the information that persons’ claims for material damage have been satisfied by the Police, and calls on the Government to further ensure that full redress to the victims is provided, and to take adequate steps to prevent the recurrence of such acts and protect the physical and psychological integrity of the peaceful demonstrators at all times.
The Special Rapporteurs also recalls the Human Rights Council resolution 21/12 on safety of journalists (A/HRC/RES/21/12), which “condemns in the strongest terms all attacks and violence against journalists” and “calls upon States to ensure accountability through the conduct of impartial, speedy and effective investigations into such acts falling within their jurisdiction, and to bring to justice those responsible and to ensure that victims have access to appropriate remedies.”
The Special Rapporteur strongly urges the Government of Armenia to prevent the excessive use of force and acts of ill-treatment against peaceful protestors, and abolish the provision of Art. 31 of the RA law on Police, regarding the use by the police of water cannons on peaceful protestors.
The Special Rapporteur calls on Armenia to comply with its obligation, under international customary law, to complete a timely and independent investigation, prosecution and punishment all acts of torture and other cruel, inhuman or degrading treatment or punishment, as codified, inter alia, in the Convention against Torture (CAT). The Rapporteur expects to be kept fully informed of the outcome of the investigation and proceedings in this case.
JUA 08/07/2014 Case No. AUS 2/2014 State Reply: 10/07/2014 and 05/05/2015 Allegations concerning the situation of two groups of Sri Lankan asylum seekers and migrants (203 in total), including a significant number of Tamils, and their incommunicado detention and imminent deportation to Sri Lanka by the Australian Government, in contravention of Australia’s non-refoulement obligations.
The Special Rapporteur thanks the Government of Australia for its replies, dated 10 July 2014 and 5 May 2015, to the present communication.
The Rapporteur acknowledges the comprehensive account of the Government in response to the concerns, legal obligations and questions raised in the initial communication.
He takes note with concern of the information provided by the Government, that a group of 157 persons has been transferred to Nauru and a group of 41 persons transferred to Sri Lankan authorities on 6 July 2014. The Rapporteur is also concerned that the asylum seekers and the migrants were held by the Australian authorities without providing information on their whereabouts and conditions prior to their deportation.
The Rapporteur also takes note of the fact that the High Court of Australia handed down a decision on the case of one of the passengers on 28 January 2015.
Notwithstanding, the Rapporteur concludes that the Government of Australia, by deporting the passengers in both of the groups, without giving them an opportunity to make a proper claim for protection (with possibly one exception), to places where they may face persecution, torture or other cruel, inhuman or degrading treatment or punishment, has violated its obligation under article 3 of the Convention against torture (CAT).
JUA 27/03/2015 Case No. AUS 3/2015 State reply: 27/11/2015 Allegation concerning severe detention conditions, including solitary confinement and inadequate medical care, of Mr. X, charged with attempted homicide and found not guilty due to mental impairment at the time of the offense.
The Special Rapporteur thanks the Government of Australia for its reply, dated 27 November 2015, to the present communication. He regrets that the Government did not receive the communication in time and will endeavor to find out the reasons for the delay. The Rapporteur acknowledges the information provided in November 2015 by the Government on the treatment received by Mr. X throughout his detention and his transfer to Adelaide Remand Centre. In particular, the detailed information about various measures adopted vis-à-vis Mr. X over the last several years, the reasons behind them and the safeguards adopted in each case, contribute effectively to an understanding of the allegations.
In this context he recalls Rule 45 of the United Nations Standard Minimum Rules for the Treatment of Prisoners (as amended on Nov. 5, 2015 by the General Assembly and readopted as the “Mandela Rules”), which provides that “[t]he imposition of solitary confinement should be prohibited in the case of prisoners with mental or physical disabilities when their conditions would be exacerbated by such measures.” The Rapporteur would like to draw the Government’s attention to his interim report to the General Assembly of 5 August 2011 (A/66/268), where he defined solitary confinement, in accordance with the Istanbul Statement on the Use and Effects of Solitary Confinement, as the physical and social isolation of individuals who are confined in their cells for 22 to 24 hours a day. He observed that while solitary confinement for short periods of time may be justified under certain circumstances, with adequate and effective safeguards in place, the use of solitary confinement of any duration against persons who suffer from mental or psycho-social disabilities may never constitute a legitimate instrument of the State.
He urges the Government to ensure that Mr. X is housed in a facility where he can have meaningful human contact and receive adequate and effective psychiatric treatment. He also respectfully requests to be kept informed of future developments in the case of Mr. X.
JAL 01/06/2015 Case No. AUS 5/2015 State Reply: 03/08/2015 Allegations that Australian authorities violatedtheprincipleofnon-refoulementinreturningagroupof46VietnameseasylumseekerstoVietnamwithoutallowingforadequateprocedurestodeterminetheirclaimtorefugeestatus,thusallowingforariskofpossibletortureor ill-treatment upon return to Vietnam.
The Special Rapporteur thanks the Government of Australia for its reply, dated 3 August 2015, to the present communication. He takes note of the information provided by the Government that the 46 Vietnamese asylum seekers received on-water interviews; that the State found the asylum seekers did not engage the state's non-refoulement obligations; that the government of Australia obtained assurances from the Vietnamese government concerning the treatment the asylum seekers would receive on return to Vietnam; that Australian officials were present upon the asylum seekers' arrival in Vietnam; and that the Vietnamese government subsequently informed Australia that all asylum seekers were safe and well.
However, the Special Rapporteur finds that the Government, in its reply, did not sufficiently address the concerns raised about the “enhanced screening procedure” for unauthorized maritime arrivals, and measures taken to ensure that all asylum seekers are afforded a fair opportunity to state a claim for refugee status in compliance with the principles of non-refoulement. In particular, no information has been provided as to whether the asylum seekers were asked specific questions during their screening interview to determine whether they risked torture or cruel and unusual treatment, in addition to being asked about more general risk of persecution. Concerns raised about allegations that asylum seekers are not advised of their right to seek asylum and CAT relief, that no access to legal representation is provided unless specifically requested, and that no appeal mechanism exists to remedy errors in decision making, were furthermore not addressed. This is of particular concern given that official information from the Parliament of Australia, updated on 2 March 2015, indicated that although between 70 and 100 per cent of asylum seekers arriving by boat in the past have been found to be refugees, all claims for protection have been refused.
The Special Rapporteur reminds the government that, as observed in his 2015 report to the General Assembly (A/70/303), obligations enshrined in the CAT also apply to State vessels patrolling or conducting border control operations on the high seas; non-refoulement under the Convention must be assessed independently of refugee status determinations (to ensure that the fundamental right to be free from torture or other ill-treatment is respected even in cases where non-refoulement under refugee law may not apply); the procurement of diplomatic assurances cannot be used by States to escape their absolute obligation to refrain from non-refoulement; and post-return monitoring mechanisms do little to mitigate the risk of torture (paras. 38-42).
The Special Rapporteur strongly urges the government of Australia to take measures to ensure that its “enhanced screening procedure” is brought fully in line with its non-refoulement obligations under international law.
JAL 12/11/2015 Case No. AUS 6/2015 State Reply: 12/01/2016 and 15/01/2016 Allegations concerning unduerestrictions, harassment, and reprisals against asylum seekers defending their rights and the rights of other detained asylum seekers, from within the detention facilities; as well as againsthuman rights defenders andjournalists who are documenting and reporting on the conditions of detention and ill-treatment in detentioncentres in Nauru, which may amount to torture.
The Special Rapporteur thanks the Government of Australia for its replies, dated 12 January 2016 and 15 January 2016, to the present communication.
The Rapporteur takes note of the information provided by the Government that the immigration detention facilities in Nauru and Papua New Guinea are under the sovereignty and control of the respective governments of those countries. Nevertheless, those governments hold immigrants in those centres for the sole purpose of implementing Australia’s policies of interdiction in the high seas, discouragement of asylum seekers and processing of requests for asylum in Australia. For that reason, Australia bears responsibility for the treatment of immigrants and asylum seekers in those centres. In spite of the information supplied by the Government, its reply fails to provide information about the allegations of ill-treatment or about any investigation into the allegations.
In the Rapporteur’s interim report to the General Assembly of 5 August 2011 (A/66/268), the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment defined solitary confinement, in accordance with the Istanbul Statement on the Use and Effects of Solitary Confinement, as the physical and social isolation of individuals who are confined in their cells for 22 to 24 hours a day. He observed that while solitary confinement for short periods of time may be justified under certain circumstances, with adequate and effective safeguards in place, the use of prolonged (in excess of 15 days under conditions of total isolation) or indefinite solitary confinement may never constitute a legitimate instrument of the State, as it may cause severe mental and physical pain or suffering, a point which has been reiterated in paragraph 28 of the General Assembly resolution 68/156. Prolonged or indefinite solitary confinement runs afoul of the absolute prohibition of torture and other cruel, inhuman or degrading treatment or punishment. Furthermore, due to the prisoner’s lack of communication, as well as the lack of witnesses inside the prison, solitary confinement may also give rise to other acts of torture or ill-treatment.
In the absence of information to the contrary, the Rapporteur concludes that there is substance in the allegations presented in the initial communication, available via the link above, and that the Government of Australia, by failing to protect the physical and psychological integrity of human rights defenders at immigration detention facilities under its control, including by failing to prevent ill-treatment, incommunicado detention in solitary confinement and restriction on the access to food, medical care, water and sanitation, has violated the rights of the human rights defenders to be free from torture and other forms of cruel, inhuman and degrading treatment, as provided by articles 2 and 16 of the CAT and has failed to comply with its obligation to investigate, prosecute and punish all acts of torture and other cruel, inhuman or degrading treatment or punishment, as provided by its obligations under the Convention against Torture.
JUA 16/11/2015 Case No. AUS 7/2015 State Reply: 17/12/2015 Allegation concerning the alleged sexual violence against Ms. Nazanin Bagheri and ill-treatment faced by her and her brother, Mr. Omid Bagheri Jebeli, in the context of their detention in the Australian Regional Processing Centre in Nauru and their interaction with the Nauru National Police force.
The Special Rapporteur thanks the Government of Australia for its reply dated 12/17/2015 to the present communication.
In the response, the Government of Australia informed that Ms. Nazanin Bagheri and members of her family had received appropriate ongoing medical care. The Special Rapporteur welcomes that Ms. Nazanin Bagheri has been temporarily transferred to Australia for medical treatment and that she has been provided with telephone and internet services to effectively communicate with her family. The Special Rapporteur also welcomes information provided regarding the measures taken to prevent ill-treatment of asylum seekers; in particular, that service providers under contract with the Australian government receive training and that a strict code of conduct is in place.
The Special Rapporteur finds that the Government of Australia has complied with its obligations under Articles 2 and 16 of the Convention Against Torture (CAT).