Unhrc Special Rapporteur Letter Torture War on Terrorism Uk Nov 25 2011
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NATIONS UNIES HAUT COMMISSARIAT AUX DROITS DE L'HOMME General Tel: + 41 22 9179000 General Fax: + 41229179006 Internet: www.ohchr.org E-mail: sr-torture@ohchr.org FACSIMILE rr o: Mr. T. L Early, Section Registrar European Court of Human Rights Council 0 f Europe 67075 Strasbourg Cedex France From: Mara Bustelo, orc Chief, Special Proc OHCHR, Geneva (]/J{)/? !!> ..s' 1: ~ ranch FaxN°: +410229179006 Fax N°: Tel N°: +33 (0)3 88412730 +33 (0)3 8841 20 18 Tel N°: +410229179235 Date: 25 November 2011 Number of pages including this one Subject: Letter from the Special Rapporteur on the question of torture and other cruel, inhuman or degrading treatment or punishment 4 Please find attached a letter from the Special Rapporteur on the question of torture and other cruel, inhuman or degrading treatment or punishment, Mr. Juan E. Mendez in the case of Barbar Ahmad and Others v. The United Kingdom for the Court's consideration. B est regards. I NATIONS UNIES UNITED NATIONS HAUT COMMISSARIAT DES NATIONS UNIES AUX DROITS DE L'HOMME OFFICE OF THE UNITED NATIONS I-IIGH COMMISSIONER FOR HUMAN RIGHTS PROCEDURES SI'ECIALES DU CONSEIL DES DROITS DE L'HOMME SPECIAL PROCEDURES OF THE HUMAN RIGHTS COUNCIL Mandate of the Special Rapporteur on the question of torture and other el'tlcl, inhuman or degrading treatment or punishment Telerax:(41~12)-917 9006 reh~b'Tammes: UNATJONS. GENEVE Telex: 41 29 Ci2 Tell..1Jhone: +41 (0)22.917.9160 Internet: www.ohchr.org E~mnil: sr-loTiure(il!Ohchr ort.! REFERENCE: (l\'~~ ~~'tJl? ~ Address: PaJais des Nations CI'H21 1 GENEVE 10 also 214 (53-21) 25 November 2011 Dear Mr. T L Early, In my capacity as United Nations Special Rapporteur on the question of torture and other cruel, inhuman, or degrading treatment or punislnnent (SR on Torture) pursuant to General Assembly resolution 60/251 and to Human Rights COUl1ci1 reso1ntion 16/23, I have drafted a submission on a voluntary basis to the European Court of Human Rights (ECHR) in the case of Barbar Ahmad and Others v. The United Kingdom for the Cotni's consideration without prejudice to the privileges and inmmnities ofthe United Nations and its experts and officials. It has recently corne to my attention that the issue of solitary confinement, a practice of central concern to the mandate of the SR on Torture, has arisen before the Court in cOlmection to the present case. I ac1G1ow1edge however, that the period for third party observations in the present case closed in December 2010, and that the case is in the final stages of consideration by the Court, and therefore will keep my snbmission concise. Pnrsuant to UN Humar1 Rights Council 16/23 (AlHRC/RESI16/23), I act under the aegis of the Human Rights Counsel without remuneration as an independent expert within the scope of my mandate which enables me to seek, receive, examine and act on infonnation from numerous sources, inclnding individuals, regmding issues and alleged cases concerning torture and or other cmel, inhlnnar1 or degrading treatment or punis1nnent. Where necessary, in response to complaints and other connnunications received, I conduct field visits to relevant States a!1d engage in a dialogue with States to detern1ine if violations have occUlTed and propose remedies. The communications with States also seek to ensure that every effori is taken to root out the practice of tOliure worldwide. The working methods of the SR on Torture ensure confidentiality of the specific content of complaints and a!1y follow-up conU1mnications until sllch time as they Mr. T. L Ear·ly, Section Registrar European Court of Humar1 Rights Council of Europe . 67075 Strasbourg Cedex France Tel: +33 (0)3 88412018 Fax: +33.(0)388412730 are reflected in official reports submitted to the UN Human Rights Councilor when mandate holders detern1ine that the specific circumstances require action to be taken before that time. This confidentiality is of central importance to my work because of the nature of the allegations and potential for reprisals. However, as it is relevant to the present case before the Court, I write to aclmowledge that I have received complaints concerning detainees held at the ADX Florence prison facility as a result of terrOlism-related convictions.· These complaints have referenced, inter alia, the restrictive nature of the detention regime at ADX Florence, including the use of special administrative measures and solitary confinement for prolonged and indefinite periods. More broadly, I am engaged with the international community on the issue of solitary confinement as highlighted in my most recent report to the UN General Assembly (U.N. Doc. A/66/268, 5 August 2011). This report is a thematic study and does not address solitary confinement as it is practiced in anyone State. I published this repOli in an effort to generate guidelines to govern State practice in this area, the most basic of which calls for a complete ban· on solitary confinement, pmiicularly when used for a prolonged or indefinite period, and identifies the very limited circumstances in which solitary confinement may be practiced. My principal concern is the effect of the social isolation and sensory deprivation that is characteristic of most solitmy confinement regimes. Not only is solitary confinement m1tithetical to the rehabilitation of offenders 8!1d facilitation of their reintegration into society, but medical studies m1d 8!1ecdotal evidence has additionally shown that this fo= of social isolation and sensory deprivation C8!1 cause serious hmm to the physical 8!1d mental state of a detainee, even after a short period of time (see U.N. Doc. N66/268, paras. 62-65). The negative impact on detainees under a solitmy confinement regime is severe because solitary confinement allows individuals to be confined to their cells for 22 to 24 hours a day, without any me8!1i:ngful social contact and deprived of most, if not all, physical and social stimuli (see U.N. Doc. N66/268 para. 25). I mn particularly concerned with the use of solitm·y confinement as a punishment, during pre-trial detention, indefinitely or for a prolonged period, for juveniles or persons with mental disabilities, in which cases it can undoubtedly m110unt to torture or other crnel, inhuman or degrading treatment or punislunent. For the above reasons, as also asserted by fo=er SR's on Torture, solitary confinement should only be used in exceptional circumst8!1ces, m1d with appropriate procedural 8!1d judicial safeguards in place(E/CN.4/1999/61, para. 394, 8!1d E/CN.4/2003/68, para. 26 (m)). Moreover, prolonged solitary confinement may itself amount to prohibited iII-treatment or torture. This view is broadly supported by my own research 8!1d the jurisprndence of the regional humm1 rights bodies, 8!1d universal hum8!1 rights mech8!1isms (see U.N. Doc. N66/268, paras. 27-39). Moreover, solitary confinement that is either indefinite or prolonged, as I have defined as exceeding 15 consecutive days in length, should be subject to an absolute prohibition because of the severe pain m1d suffering that it inflicts. The Council of Europe's Committee for the Prevention of Torture and Inhum8!1 or Degrading Treatment or Punishment.(CPT) has called for a similar bm1 on solitary confinement when used for an extended period and recommends that if States employ the practice, then they do so only under exceptional circumstances, for the shmiest period possible and always subject to judicial oversight (see CPT/Inf (2011) 28, paras. 56-57, 10 November 2011). Alongside this repmi, I am engaged with numerous states, including the United States of America, on the issue of solitary confinement. For inst8!1ce, as widely reported in the media, I 2 1, i i am engaged in a dialogue with the United States Govemment on allegations of the prolonged solitary confinement of Mr. Bradley Manning, a United States army soldier charged with the unauthOlized disclosure of classified infonnation. The United States Government granted me pennission to intervi ew Mr. Manning but did not agree to an unmonitored conversation. Under such tenns, both Mr. MaIming and I declined the offer. In Aplil 2011, Mr. Maiming was transfened to an al1ny prison at Fort Leavenworth, Kansas, where he is now held under conditions that do not include solitary confinement. It is my understanding that prolonged and indefinite solitary confinement is applied in United States' plisons in a vaIiety of ways and for different pnrposes. In pmiiculaI', it is applied to inmates accused or convicted of tenOlism-related offenses, both during pre-tlial detention and· post-conviction. For these inmates, solitmy confinement is often supplemented with "special administrative measures" (SAMs) that fmiher restrict contacts of these defendants with family and lawyers. Both solitary confinement and SAMs seem to be imposed without any relation to the behaviour of the inmate or his obSerVaI1Ce of prison discipline. Although these restrictions are imposed invoking the need to prevent acts of tenorism by others, no particular showing is made of specific reasons for such measures. hldeed, it appears that imnates have limited or no opportl111ity to challenge those reasons or to do anything that would allow them to "step down" from SAMs or solitmy confinement. I understmld that in the present case; the Applicant asserts that his possible extradition to the United States may violate the legal principle of non-refoulement under Article 3 of the European Convention on Human Rights. Non-refoulement requires States to act affinnatively to prevent the extradition of detainees to States where torture or other cHlel, inhuman, or degrading treatment or punishment are practiced. Without causing prejudice to the Court's fmdings, I am concerned that extTadition of a detainee to a State that practices prolonged solitary confinement with limited recourse would violate Article 3. As SR on Torture I will continue to engage with States mld other bodies on the matter of solitmy confinement. i ~ I Again, this letter is provided without prejudice to, and should not be considered as a waiver, express or implied, of the privileges and ilmmmities of the United Nations, its officials and expelis on missions, pursuant to the 1964 Convention on the Plivileges and Immunities of the United Nations. , Sincerely, Juan E. Mendez Special RappOlieur on torture and other cruel, inhuman or degrading treatment or punishment 3 ,- • • • • P. RAPPORT DE RESULTAT DE LA COMMUNICATION 25. NOV. 2011 11:21) EN TETE FAX TRANSMIS/MEMORISE: 25. NOV. 2011 • • • OHCHR 0041229179006 11:19 RESULT. PAGE ~~~~_~~~~ ____________ ~~~~~~---------------~~~~~~~----- ---------------------------------------4/4---909 TX MEMORISEE 00033388412730 OK 1 I ---------------------------------------------------------------------------------------------------~:~l ~5lgu~~ NATIONS 'UNmS :a:ATJ'l" CO~lSS.AR.IA..T General Te~: TELECOPI EUR UNITED A.'UX nROITS nE L~.BOMlVIE NATIONS HIGH COMMISSIONER FOR InJMAN RIGHTS + 41 229179000 General Fax: -+- 41 22 917 9006 Iuter.uet; WVV'\v.ohchr.org E-mail; sr-tortuxe@ohcb1".o1'g /To: FACSIMILE ~""!r_ T. L Early~ Seotion Registrar European. Court oIHurnan Rights Council of Europe 67075 Sttasbour-g Cede"!.: !Fro=.: Mara. Bustelo, Ole Chief;. Special Proc OHCHR" Geneva {tooR Z , .Qra.u.ch France ""a..s:.N°: Tel N°: pate, Subject: 'i 33 (0)3 88.41 2730 +33 (0)3 8841 2018 25 Nov=ber 2011 ax N"; +41 022 917 90 06 freI N": +41 0229179235 NUlD,"ber of pages lnclu.ding this OIJ,e Letter ft~ODl the Sp.:::,ciaI Rapporteur on the question of' "torture and o1:her ill.hun::"aJ1 or degradi:o.o:r t;rea'trnen:t or punishn~ent 4 ~ell> Please find attached a letter from. the Special Rapporte\.lr on the question of torture and other cruel", inl'l'u:rn8.lJ. or degrading treatn1cnt or Pl;lllisl'll::ne:nt, lVIr. Juan E. N1eodez in the case of Barbar A.hJ:nad and Others 'V. The Unit:ed IGngdolll for the Court:>s consideration. Best regards~ I I 1-