Punishment and disability
6.2 The general relevance of Convention norms in the context of disability
“parallel reporting” under the Convention.
(b) NGO participation in the individual complaints procedure
NGOs may support individual petitions directly or provide general information to the Committee of relevance to the complaint. NGOs wishing to submit information in the context of individual complaints must ensure that they include the following: the name of the victim, the date and place of the incident, the alleged perpetrators and details of treatment.
Individual complaints could prove very significant for persons with disabilities, who may often be unaware of their rights or without access to advocates who can articulate them. A properly structured individual complaint should describe the political, legal and social context. NGOs often have the resources to do this – or at least more
resources than the individual. This is equally true of disability NGOs, which should be encouraged to provide more support for individual complaints.
6.2 The general relevance of Convention norms in the context of disability
The prohibition of torture and other cruel, inhuman or degrading treatment or
punishment obviously lies at the core of the Convention, but States parties also have a
20 The “APT guidelines for national NGOs on alternative reporting to United Nations bodies, including the Committee against Torture” (2000) may be accessed at the following address on the APT web site:
http://www.apt.ch/cat/guidelines.htm.
number of ancillary obligations whose relevance in the context of disability is discussed in this section.
(a) The obligation to prevent torture (article 2) Article 2 of the Convention reads as follows:
1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.
The provisions of article 2 are relevant in the context of disability. The following questions arise and should be addressed in State party reports. What type of
legislation prohibits torture? Does it clearly cover persons with disabilities? Are there any factors that inhibit persons with disabilities from using the law? What specific measures have States parties taken to prevent the use of torture and other forms of cruel, inhuman or degrading treatment in the case of persons with disabilities?
(b) The obligation to prevent cruel, inhuman or degrading treatment or punishment (article 16)
Article 16(1) reads as follows:
Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution of references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment.
While article 2 prohibits torture, article 16 prohibits all forms of treatment falling short of torture. Moreover, article 16(1) renders the provisions of articles 11 (systematic review of interrogation rules, instructions, methods and practices), 12 (prompt and impartial investigation) and 13 (right to complain) applicable in the context of cruel, inhuman or degrading treatment or punishment.
(c) The obligation to make torture a criminal offence (article 4)
Article 4 of the Convention requires each State party to ensure that all acts of torture are criminal offences under its criminal law. Reports should therefore provide detailed information on criminal laws that prohibit torture. Emphasis should be placed on their applicability to persons with disabilities.
(d) The obligation to apprehend those suspected of committing acts of torture (article 6)
Article 6 of the Convention states that “[u]pon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State party in whose territory a person alleged to have committed any offence referred to in article 4 is present shall take him into custody or take other legal measures to ensure his
presence.” Article 6, paragraph 2, requires such States to make a preliminary inquiry immediately into the facts.
(e) The obligation to keep interrogation rules and custody arrangements under systematic review (article 11)
Article 11 of the Convention reads as follows:
Each state party shall keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture.
This article is essentially concerned with the human rights of persons subjected to any form of detention. Persons with disabilities, especially mentally ill persons, are particularly vulnerable in places of detention.
A shortcoming of article 11 of the Convention, and indeed of the Convention as a whole, is that no specific provision addresses the needs of persons with disabilities in detention. Perhaps the only detailed guidelines in this regard are those set forth in United Nations General Assembly resolution 46/119 of 17 December 1991: Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care.
(f) The obligation not to extradite or deport where to do so could expose a person to torture (article 3)
Article 3 of the Convention reads as follows:
1. No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.
The provisions of this article also apply in the context of persons with disabilities.
They may be relevant in the context of disabled asylum-seekers who fear that if returned to their own country they may be placed in institutions where torture may be practised.
(g) The obligation to provide torture awareness education and training to public officials (article 10)
Article 10 requires each State party to ensure that education and information
regarding the prohibition of torture are fully included in the training of both civil and military law enforcement personnel, medical personnel, public officials and other
persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment. This article is of great relevance to persons with disabilities. It is vitally important for the police to be sensitive to disability during interrogation. The training of medical personnel is also vital to ensure that standards of care conform to the Convention.
(h) The obligation to investigate allegations of torture promptly (article 12)
Whenever allegations of torture are made, the State party concerned is under an obligation to investigate. Article 12 stipulates that:
Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.
This provision applies in the context of mental and other institutions.
(i) The obligation to provide for a remedy (article 13) Article 13 of the Convention reads as follows:
Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to , and to have his case promptly and impartially examined by, its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill treatment or intimidation as a consequence of his complaint or any evidence given.
This article is also applicable to victims of cruel, inhuman or degrading treatment.
State party reports under the Convention should contain information on relevant laws and administrative practices. Domestic remedies should be accessible to persons with disabilities. Impediments to the enjoyment of this right experienced by persons with disabilities may not reside in the law but they may nevertheless be real.
(j) The obligation to provide redress and compensation (article 14) Article 14 of the Convention requires each State party to ensure in its legal system that the victim of an act of torture can obtain redress and has an enforceable right to fair and adequate compensation, including the means for rehabilitation. In the event of the death of the victim as a result of an act of torture, his or her dependents should be entitled to compensation. Nothing in the article should affect any right of the victim or other persons to other forms of compensation that may exist under national law.
Article 14 is of obvious relevance in the context of disability. State party reports should contain information on programmes of rehabilitation for victims or torture who become disabled.