On the topic of INTERNATIONAL LEGAL STANDARDS FOR THE PROTECTION OF PERSONS DEPRIVED OF THEIR LIBERTY, there are 12 basic international covenants that a legal researcher must read, to wit:
1.
In 1. International Covenant on Civil and Political Rights, 1966
2. 2. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984
3. 3. 1949 Geneva Conventions and its Protocols of 1977
4. 4. Statute of the International Criminal Court, 1998
5. 5. Universal Declaration of Human Rights, 1948
6. 6. Standard Minimum Rules for the Treatment of Prisoners, 1955
7. 7. Basic Principles for the Treatment of Prisoners, 1990
8. 8. Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, 1988
9. 9. 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
10. 10. Code of Conduct for Law Enforcement Officials, 1979
11. 11. Declaration on the Protection of All Persons from Enforced Disappearance, 1992
12. 12. Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, 1989.
The Philippines has no special law against torture, although in the past and present Congresses many cause-oriented party-list or sectoral representatives in the House of Representatives have filed various bills to puruse the matter.
Article 3(I)(a) to the 1949 Geneva Conventions, which concerns armed conflicts not of an international character, “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture” shall remain prohibited at any time and in any place whatsoever with respect to “persons taking no active part in the hostilities”.
Article 75(2)(a) of Protocol Additional I and article 4(2)(a) of Protocol Additional II to the Geneva Conventions, which respectively relate to international and non-international armed conflicts, similarly proscribe “violence to the life, health and physical or mental well-being of persons”, and, in particular, murder, torture, corporal punishment and mutilation.
The peremptory nature both of the right to life and of the right to freedom from torture and other cruel, inhuman or degrading treatment or punishment is moreover underlined by the fact that these rights cannot be derogated from under international human rights law even in the gravest of crisis situations, per Article 4(2) of the International Covenant on Civil and Political Rights.
Article 2(2) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment provides 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 of torture”.
Article 7 of the Rome Statute of the International Criminal Court provides that torture constitutes a crime against humanity “when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”. “Torture or inhuman treatment, including biological experiments” also constitute war crimes and grave breaches of the 1949 Geneva Conventions for the purpose of the same Statute (art. 8(2)(a)(ii)).
Under exisitng international covenants, what are the legal responsibilities of the Philippines as a state?
Article 7 of the International Covenant on Civil and Political Rights provides that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment
or punishment”, and, in particular, that “no one shall be subjected without his free consent to medical or scientific experimentation”. The UN Human Rights Committee has stated that “it is the duty of the State party to afford everyone protection through legislative and other measures as may be necessary 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”. The prohibition in article 7 “is complemented by the positive requirements of article 10, paragraph 1, of the Covenant, which stipulates that ‘All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person’.”
Article 2 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment provides that “each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction”. According to article 12 of the Convention, each State party shall moreover “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”. The State should “ensure vigorous investigation and, where appropriate, the prosecution of all reported instances of alleged torture and ill-treatment” by their authorities, “whether civil or military”. It should “ensure that amnesty laws exclude torture from their reach”. States parties to the Convention against Torture should repeal laws which may undermine the independence of the Judiciary, and, with regard more particularly to the problem of limited-term appointments, bring their legislation into line with the 1985 Basic Principles on the Independence of the Judiciary and the 1990 Guidelines on the Role of Prosecutors.
The UN Human Rights Committee has pointed out that article 7 of the International Covenant on Civil and Political Rights should be read in conjunction with article 2(3) thereof concerning the obligation of the States parties to provide effective remedies to persons whose rights and freedoms are violated. This means, in particular, that “the right to lodge complaints against maltreatment prohibited by article 7 must be recognized in the domestic law” and that “complaints must be investigated promptly and impartially by competent authorities so as to make the remedy effective”. The Committee against Torture has also emphasized the importance of introducing “an effective and reliable complaint system that will allow the victims of torture and other forms of cruel, inhuman or degrading treatment or punishment to file complaints”.
The Human Rights Committee has stated that “amnesties are generally incompatible with the duty of States to investigate such acts; to guarantee freedom from such acts within their jurisdiction; and to ensure that they do not occur in the future” and that “States may not deprive individuals of the right to an effective remedy, including compensation and such full rehabilitation as may be possible.”
In order to protect the personal security of persons deprived of their liberty, they must be held exclusively in officially recognized places of detention. The obligation of States to comply with this legal duty is recognized both by the international monitoring organs and in various legal instruments. See article 7 of the International Covenant on Civil and Political Rights: To guarantee the effective protection of detained persons, provisions should be made for detainees to be held in places officially recognized as places of detention and for their names and places of detention, as well as for the names of persons responsible for their detention, to be kept in registers readily available and accessible to those concerned, including relatives and friends.
In addition to the requirement that persons deprived of their liberty must be held in officially recognized places of detention, the Human Rights Committee has held that provision must also be made for “their names and places of detention, as well as for the names of persons responsible for their detention, to be kept in registers readily available and accessible to those concerned, including relatives and friends”. (Rule 7(1) of the Standard Minimum Rules forthe Treatment of Prisoners; Article 10 of the Declaration on the Protection of All Persons from EnforcedDisappearance).
While the general human rights conventions contain no details of the requirements with regard to the accommodation of detainees and prisoners, Rules 9-14of the Standard Minimum Rules for the Treatment of Prisoners regulate, in particular, sleeping, working and sanitary conditions.
Rule 9(1) thereof provides that “where sleeping accommodation is in individual cells or rooms, each prisoner shall occupy by night a cell or room by himself. If, for special reasons, such as temporary overcrowding, it becomes necessary for the central prison administration to make an exception to this rule, it is not desirable to have two prisoners in a cell or room”. Where dormitories are used, they shall only be occupied by prisoners “suitable to associate with one another in those conditions” (Rule 9(2)). All prison accommodation of persons deprived of their liberty, including in particular the sleeping accommodation, “shall meet all requirements of health, due regard being paid to climatic conditions and particularly to cubic content of air, minimum floor space, lighting, heating and ventilation” (Rule 10). In all living and working places within places of detention, “the windows shall be large enough to enable the prisoners to read or work by natural light, and shall ... allow the entrance of fresh air whether or not there is artificial ventilation” (Rule 11(a)). “Artificial light shall be provided sufficient for the prisoners to read or work without injury to eyesight” (Rule 11(b)). Lastly, “the sanitary installations shall be adequate to enable every prisoner to comply with the needs of nature when necessary and in a clean and decent manner” (Rule 12).
The following main principles contained in the United Nations Standard Minimum Rules for the Treatment of Prisoners should be emphasized:
1. As to personal hygiene: “prisoners shall be required to keep their persons clean, and to this end they shall be provided with water and with such toilet articles as are necessary for health and cleanliness” (Rule 15).
2. As to clothing: “every prisoner who is not allowed to wear his own clothing shall be provided with an outfit of clothing suitable for the climate and adequate to keep him in good health. Such clothing shall in no manner be degrading or humiliating” (Rule 17(1)). “All clothing shall be clean and kept in proper condition” (Rule 17(2)); “whenever a prisoner is removed outside the institution for an authorized purpose, he shall be allowed to wear his own clothing or other inconspicuous clothing” (Rule 17(3)).
3. As to bedding: “Every prisoner shall, in accordance with local or national standards, be provided with a separate bed, and with separate and sufficient bedding which shall be clean when issued, kept in good order and changed often enough to ensure its cleanliness” (Rule 19).
4. As to food: “Every prisoner shall be provided by the administration at the usual hours with food of nutritional value adequate for health and strength, of wholesome quality and well prepared and served”; “drinking water shall be available to every prisoner whenever he needs it” (Rule 20(1) and (2)).
5. As to health and medical services: there shall be “at least one qualified medical officer who should have some knowledge of psychiatry” at every place of detention and the medical services “should be organized in close relationship to the general health administration of the community or nation” (Rule 22(1)); “sick prisoners who require specialist treatment shall be transferred to specialized institutions or to civil hospitals”, and where hospital facilities exist in the institution concerned, they shall have the equipment and supplies “proper for the medical care and treatment of sick prisoners and ... a staff of suitable trained officers” (Rule 22(2)); every prisoner shall also have at his or her disposal “the services of a qualified dental officer” (Rule 22(3)).
As to recreational activitries, according to Rule 21(1) of the Standard Minimum Rules, “every prisoner who is not employed in outdoor work shall have at least one hour of suitable exercise in the open air daily if the weather permits”. Principle 6 of the Basic Principles further provides that “all prisoners shall have the right to take part in cultural activities and education aimed at the full development of the human personality.” According to Principle 28 of the Body of Principles, “a detained or imprisoned person shall have the right to obtain within the limits of available resources, if from public sources, reasonable quantities of educational, cultural and informational material, subject to reasonable conditions to ensure security and good order in the place of detention or imprisonment.”
As to solitary confinement, although it does not per se violate international human rights law, such as articles 7 and 10(1) of the International Covenant, its lawfulness will depend on the aim, length and conditions of the confinement in each particular case. The Human Rights Committee has stated “prolonged solitary confinement of the detained or imprisoned person may amount to acts prohibited by article 7” of the Covenant. It is noteworthy that Principle 7 of the Basic Principles for the Treatment of Prisoners provides, furthermore, that “efforts addressed to the abolition of solitary confinement as a punishment, or to the restriction of its use, should be undertaken and encouraged”.
A fundamental premiss when dealing with the right of detainees and prisoners to maintain contact with the world outside the institutions where they are held is that, like free persons, those deprived of their liberty enjoy all the human rights guaranteed by international law, subject of course to those restrictions that are an unavoidable consequence of the confinement. This means, inter alia, that no detainee or prisoner “shall ... be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence” (art. 17 of the International Covenant on Civil and Political Rights).
Rule 37 of the Standard Minimum Rules provides that “prisoners shall be allowed under necessary supervision to communicate with their family and reputable friends at regular intervals, both by correspondence and by receiving visits.” Prisoners who are foreign nationals “shall be allowed reasonable facilities to communicate with the diplomatic and consular representatives of the State to which they belong”, or “with the diplomatic representative of the State which takes charge of their interests or any national or international authority whose task it is to protect such persons” (Rule 38(1) and (2)). According to Rule 92: “ An untried prisoner shall be allowed to inform immediately his family of his detention and shall be given all reasonable facilities for communicating with his family and friends, and for receiving visits from them, subject only to restrictions and supervision as are necessary in the interests of the administration of justice and of the security and good order of the institution.”
Contacts between a lawyer and his clients are privileged and confidential and this basic rule also continues to apply when the clients are deprived of their liberty. Rule 93 of the Standard Minimum Rules stipulates in this respect that: “93. For the purposes of his defence, an untried prisoner shall be allowed to apply for free legal aid where such aid is available, and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him confidential instructions. For these purposes, he shall if he so desires be supplied with writing material. Interviews between the prisoner and his legal adviser may be within sight but not within the hearing of a police or institution official.” (Principle 18 of the Body of Principles).
As pointed in various United Nations special reports on the question of torture, “regular inspection of places of detention, especially when carried out as part of a system of periodic visits, constitutes one of the most effective preventive measures against torture. Inspections of all places of detention, including police lock-ups, pre-trial detention centres, security service premises, administrative detention areas and prisons, should be conducted by teams of independent experts”, whose members “should be afforded an opportunity to speak privately with detainees” and should also report publicly on their findings. The UN Human Rights Committee has expressed concern “at the lack of an independent system of supervision of: (a) abuses of human rights by police officers; (b) the conditions in penal institutions, including those for juvenile offenders; and (c) complaints of violence or other abuse by members of the Prison Service”.
The Committee against Torture has also recommended that “independent governmental bodies consisting of persons of high moral standing should be appointedto take over the inspection of detention centres and places of imprisonment.”
What must be the role of judges, prosecutors and lawyers in preventing and remedying Unlawful treatment of persons deprived of their liberty?
The role of judges, prosecutors and lawyers in ensuring both the true enjoyment of these rights and the effective functioning of the complaints system is indispensable and multifaceted. Lawyers will at all times have to protect and defend their clients’ interests, and must remain vigilant to any signs of torture or other forms of ill-treatment and vigorously pursue any avenues open to them to complain against such treatment. If the domestic avenues of appeal are not functioning, a remedy of last resort may be to pursue the complaints before a competent body at the international level. Prosecutors have a special obligation to take all necessary steps to bring to justice those who are suspected of having committed human rights violations such as torture or cruel, inhuman or degrading treatment. Their work is a key both to the remedying of past human rights violations and to the prevention of future violations. The effective work of prosecutors does of course presuppose that they are able to work in an independent and impartial manner, without interference by the Executive. Prosecutors are not allowed to rely on evidence obtained by unlawful means involving human rights violations. Judges must be able to decide independently and impartially all cases of alleged human rights violations. They must at all times refuse to accept confessions that have been obtained from suspects by means of torture or any form of duress.
