Promotion and protection of all human rights/Palestinian prisoners – HRC 22nd session – Report of Sp. Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment (Méndez) (excerpts)

Report of the Special Rapporteur on torture and other cruel,

inhuman or degrading treatment or punishment,
Juan E. Méndez

Addendum

Observations on communications transmitted to Governments and replies received*

_____________

^* The present document is being circulated in the languages of submission only.

I.  Introduction

1. 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 16/23.

2. In the present addendum, the Special Rapporteur provides observations, where considered appropriate, on communications sent to States between 1 December 2011 and 30 November 2012 , as well as on responses received from States in relation to these communications until 31 January 2013. Communications sent and responses received during the reporting period are accessible electronically through hyperlinks.

/…

II.  Observations by the Special Rapporteur

/…

Israel

/…

(b) JUA 28/03/2012 Case No. ISR 4/2012 State reply: None to date Alleged arbitrary arrest and detention with sexual assault and torture by the Israeli military forces

72. The Special Rapporteur regrets that the Government of Israel has not responded to this communication dated 28 March 2012, thereby failing to cooperate with the mandate issued by the Human Rights Council. The communication referred to the alleged sexual assault and torture of a 30-year-old Palestinian woman held in administrative detention and subsequent use of solitary confinement as a reprisal to her hunger strike in response to the use of administrative detention. The victim was the subject of an earlier urgent appeal to the Government of Israel regarding the administrative detention, however, regrettably no reply has been received. In response to the alleged abuse and sexual assault perpetrated by a solider in the Salem detention center and the subsequent use of solitary confinement, the Special Rapporteur urges the Government to protect the right to physical and mental integrity of all persons, as set forth inter alia in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). He would like to refer to paragraph 1 of Human Rights Council Resolution 16/23 which “Condemns all forms of torture and other cruel, inhuman or degrading treatment or punishment, including through intimidation, which are and shall remain prohibited at any time and in any place whatsoever and can thus never be justified, and calls upon all States to implement fully the absolute and non-derogable prohibition of torture and other cruel, inhuman or degrading treatment or punishment.” With regard to the use of solitary confinement as a reprisal for the hunger strike, the Special Rapporteur stresses that solitary confinement should be used only in very exceptional circumstances, as a last resort, for as short a time as possible, as detailed in the Istanbul Statement on the Use and Effects of Solitary Confinement (paragraph 89, A/66/268). Circumstances or purposes for which solitary confinement may be legitimate do not include reprisals. The use of solitary confinement may cause serious psychological and physiological adverse effects on individuals deprived of liberty, negating a primary aim of the penitentiary system, rehabilitation and reintegration. Further, the Special Rapporteur draws attention to paragraph 6 of General Comment 20 of the Human Rights Committee, stating that prolonged solitary confinement of detained or imprisoned persons may amount to acts prohibited by article 7 [on the prohibition of torture and other cruel, inhuman or degrading treatment or punishment] of the International Covenant on Civil and Political Rights. (Adopted at the 44th session of the Human Rights Committee, 1992). In this context, the Special Rapporteur would also like to refer to article 7 of the Basic Principles for the Treatment of Prisoners, which provides that “efforts addressed to the abolition of solitary confinement as a punishment, or to the restriction of its use, should be undertaken and encouraged.” (Adopted by the General Assembly by resolution 45/111 of 14 December 1990). In absence of evidence to the contrary, the Special Rapporteur determines that the rights of the identified woman have been violated. The Special Rapporteur calls on the Government to provide information regarding the legal grounds for the aforementioned person‟s arrest and detention and to undertake a prompt and independent investigation of the alleged mistreatment while held in detention, leading to prosecution and punishment of the perpetrators, and to provide full redress to the victim. Furthermore, the Special Rapporteur calls upon the Government to abolish or restrict the use of solitary confinement as a punishment and adopt measures that promote rehabilitation of those held in detention.

(c) JUA 14/05/2012 Case No. ISR 5/2012 State reply: None to date Allegation concerning more than 1,500 Palestinian prisoners in Israeli prisons who are currently engaged in an open-ended hunger strike; solitary confinement and inadequate medical care in prison

73. The Special Rapporteur regrets that the Government of Israel has not responded to this communication dated 14 May 2012, thereby failing to cooperate with the mandate established by the Human Rights Council. The communication referred to the dire and critical health condition of Mr. Thaer Halahleh and Mr. Bilal Diab and other Palestinian prisoners and detainees who underwent a prolonged hunger strike in response to the Government‟s alleged excessive use of administrative detentions, solitary confinement, and limitations on family visits. Further, the communication referred to the alleged denial of adequate medical attention to those in critical health condition. The Special Rapporteur expresses serious concern regarding the physical and psychological integrity of the Palestinian prisoners and detainees. In this context, the Special Rapporteur reiterates Rule 22(2) of the Standard Minimum Rules for the Treatment of Prisoners, which provides that “[s]ick prisoners who require specialist treatment shall be transferred to specialized institutions or to civil hospitals. Where hospital facilities are provided in an institution, their equipment, furnishings and pharmaceutical supplies shall be a staff be proper for the medical care and treatment of sick prisoners, and there shall be a staff of suitable trained officers.” Regarding the use of solitary confinement, the Special Rapporteur draws attention to paragraph 6 of General Comment 20 of the Human Rights Committee, which states that prolonged solitary confinement of the detained or imprisoned person may amount to acts prohibited by article 7 [on the prohibition of torture and other cruel, inhuman or degrading treatment or punishment] of the International Covenant on Civil and Political Rights” (adopted at the 44th Human Rights Committee, 1992). In this regard, he further draws attention to article 7 of the Basic Principles for the Treatment of Prisoners, which provides that “efforts addressed to the abolition of solitary confinement as a punishment, or to the restriction of its use, should be undertaken and encouraged” (adopted by the General Assembly by resolution 45/111 of 14 December 1990). In the absence of contradictory evidence, the Special Rapporteur concludes that the Government‟s use of punitive measures in response to hunger strikes violates the rights of prisoners and detainees. The Special Rapporteur also concludes that the denial of medical attention to persons in custody constitutes cruel, inhuman, or degrading treatment in violation of international standards. The Special Rapporteur urges the Government to prohibit the imposition of solitary confinement as a disciplinary measure and ensure the physical and mental health of the prisoners. Furthermore, the Special Rapporteur calls on the Government of Israel to ensure that all sick persons in detention are provided with proper medical care and treatment.

(d) JUA 16/11/2012 Case No. ISR 12/2012 State reply: None to date Alleged detention, ill-treatment and violations of due process rights of human rights defender

74. The Special Rapporteur regrets that the Government of Israel has not responded to this communication dated 26 November 2012, thereby failing to cooperate with the mandate established by the Human Rights Council. The communication referred to alleged arbitrary detention and ill-treatment of Palestinian human rights defender Mr. Ayman Nasser. The Special Rapporteur expressed grave concern for the physical and psychological integrity of Mr. Nasser in view of allegations that he has been subjected to ill-treatment during lengthy interrogations, denied proper medical attention, and held in an isolation cell under inadequate conditions. In this context, the Special Rapporteur reminds the Government if its obligation to protect the right to physical and mental integrity of all persons, which is set forth inter alia under the UDHR, ICCPR and the CAT. The Special Rapporteur would like to refer to Human Rights Council Resolution 16/23 which “[c]ondemns all forms of torture and other cruel, inhuman or degrading treatment or punishment, including through intimidation, which are and shall remain prohibited at any time and in any place whatsoever and can thus never be justified, and calls upon all States to implement fully the absolute and non-derogable prohibition of torture and other cruel, inhuman or degrading treatment or punishment.” The Special Rapporteur further reiterates paragraph 7c of Human Rights Council Resolution 8/8 of 18 June 2008, which reminds all states that “Prolonged incommunicado detention or detention in secret places may facilitate the perpetration of torture and other cruel, inhuman or degrading treatment or punishment and can itself constitute a form of such treatment, and urges all states to respect the safeguards concerning the liberty, security, and the dignity of the person.” Furthermore, he would like to remind the Government of Rule 22(2) of the Standard Minimum Rules for the Treatment of Prisoners, which provides that “[s]ick prisoners who require specialist treatment shall be transferred to specialized institutions or to civil hospitals. Where hospital facilities are provided in an institution, their equipment, furnishings and pharmaceutical supplies shall be proper for the medical care and treatment of sick prisoners, and there shall be a staff of suitable trained officers.” In the absence of evidence to the contrary, the Special Rapporteur determines that Mr. Nasser‟s rights under the relevant standards have been violated, and calls on the Government to undertake a prompt, independent and effective investigation of the facts, leading to the prosecution and punishment of the perpetrators, and to provide full redress to the victim.

/…

Occupied Palestinian Territory

(a) JAL 19/03/2012 Case No. PSE 2/2011 State reply: None to date Alleged beating and subsequent death in custody

100. The Special Rapporteur regrets that the Government of the Occupied Palestinian Territories have not responded to this communication dated 19 March 2012. The communication referred to the severe beating and subsequent death in custody of Mr. Hassan Mahammad El Hmidi. In this respect, the Special Rapporteur would like to reiterate that Human Rights Council Resolution 17/5 stating that all States have “to conduct exhaustive and impartial investigations into all suspected cases of extrajudicial, summary or arbitrary executions.” Furthermore, the Human Rights Council Resolution 16/23, paragraph 7(b), urges States to hold responsible not only those who perpetrate torture, but also those “who encourage, order, tolerate or perpetrate such acts […], to have them brought to justice and punished in a manner commensurate with the gravity of the offence, including the officials in charge of the place of detention where the prohibited act is found to have been committed.” Accordingly, based on the information received and in the absence of evidence to the contrary, the Special Rapporteur concludes that Mr. Hassan Mahammad El Hmidi‟s rights under the UN Convention against Torture have been violated, and calls on the Government of the Occupied Palestinian Territories to undertake a prompt and independent investigation, leading to prosecution and punishment of the perpetrators. Furthermore, because Mr. Hassan Mahammad El Hmidi is no longer alive, the Special Rapporteur calls on the Government of the Occupied Palestinian Territories to provide full redress, including compensation, to his dependents in accordance with international standards.

(b) JUA 26/06/2012 PSE 4/2012 State reply: None to date Alleged imminet execution and forced confession obtained under torture

101. The Special Rapporteur regrets that the Government of the Occupied Palestinian Territories has not responded to this communication dated 26 June 2012, thereby failing to cooperate with the mandate established by the Human Rights Council. The communication referred to imminent execution of Mr. Na‟el Jamal Qandil Doghmosh, who was sentenced to death by hanging after allegedly being subjected to torture in order to force his confession to a murder. The Special Rapporteur expresses grave concern regarding the physical and mental integrity of Mr. Na‟el Doghmosh in light of the irremediable nature of capital punishment. In this context, the Special Rapporteur asserts that capital punishment should not be imposed on the basis of a confession obtained under torture. The Special Rapporteur reiterates that paragraph 7(c) of Human Rights Council Resolution 16/23 urges States “[t]o ensure that no statement established to have been made as a result of torture is invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made, and calls upon States to consider extending that prohibition to statements made as a result of cruel, inhuman or degrading treatment or punishment, recognizing that adequate corroboration of statements, including confessions, used as evidence in any proceedings constitutes one safeguard for the prevention of torture and other cruel, inhuman or degrading treatment or punishment.” In light of the fact that no evidence has been provided to the contrary, the Special Rapporteur affirms that Mr. Na‟el Doghmosh was tortured to make him confess to crimes and that his rights under international standards prohibiting torture and other cruel, inhuman or degrading treatment or punishment may have been violated. Given the irremediable nature of capital punishment, the Special Rapporteur calls on the Government not to proceed with the executions and to set aside any criminal conviction based on evidence obtained under torture.

Other

(a) JAL 19/03/2012 Case No. OTH 6/2011 State reply: None to date Alleged beating and subsequent death in custody

102. The Special Rapporteur regrets that the authorities in Gaza have not responded to this communication dated 19 March 2012. The communication referred to the severe beating and subsequent death in custody of Mr. Hassan Mahammad El Hmidi. In this respect, the Special Rapporteur would like to reiterate that Human Rights Council Resolution 17/5 stating that all States have “to conduct exhaustive and impartial investigations into all suspected cases of extrajudicial, summary or arbitrary executions.” Furthermore, the Human Rights Council Resolution 16/23, paragraph 7(b), urges States to hold responsible not only those who perpetrate torture, but also those “who encourage, order, tolerate or perpetrate such acts […], to have them brought to justice and punished in a manner commensurate with the gravity of the offence, including the officials in charge of the place of detention where the prohibited act is found to have been committed.”  Accordingly, based on the information received and in the absence of evidence to the contrary, the Special Rapporteur concludes that Mr. Hassan Mahammad El Hmidi‟s rights under the UN Convention against Torture have been violated, and calls on the authorities in Gaza to undertake a prompt and independent investigation, leading to prosecution and punishment of the perpetrators. Furthermore, because Mr. Hassan Mahammad El Hmidi is no longer alive, the Special Rapporteur calls on the authorities in Gaza to provide full redress, including compensation, to his dependents in accordance with international standards.

(b) JUA 26/06/2012 Case No. OTH 3/2012 State reply: None to date Alleged imminent execution and forced confession obtained under torture

103. The Special Rapporteur regrets that the authorities in Gaza have not responded to this communication dated 26 June 2012, thereby failing to cooperate with the mandate established by the Human Rights Council. The communication referred to imminent execution of Mr. Na‟el Jamal Qandil Doghmosh, who was sentenced to death by hanging after allegedly being subjected to torture in order to force his confession to a murder. The Special Rapporteur expresses grave concern regarding the physical and mental integrity of Mr. Na‟el Doghmosh in light of the irremediable nature of capital punishment. In this context, the Special Rapporteur asserts that capital punishment should not be imposed on the basis of a confession obtained under torture. The Special Rapporteur reiterates that paragraph 7(c) of Human Rights Council Resolution 16/23 urges States “[t]o ensure that no statement established to have been made as a result of torture is invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made, and calls upon States to consider extending that prohibition to statements made as a result of cruel, inhuman or degrading treatment or punishment, recognizing that adequate corroboration of statements, including confessions, used as evidence in any proceedings constitutes one safeguard for the prevention of torture and other cruel, inhuman or degrading treatment or punishment.” In light of the fact that no evidence has been provided to the contrary, the Special Rapporteur affirms that Mr. Na‟el Doghmosh was tortured to make him confess to crimes and that his rights under international standards prohibiting torture and other cruel, inhuman or degrading treatment or punishment may have been violated. Given the irremediable nature of capital punishment, the Special Rapporteur calls on the authorities in Gaza not to proceed with the executions and to set aside any criminal conviction based on evidence obtained under torture.

/…

________________