Custodial Death is a gross violation of Human Rights.
1. INTRODUCTION:
Whenever we go through daily newspapers or news on broadcast media or internet, one of the most common topics we can find is deaths in custody. This is something that we get to hear about most often from people surrounding us, and it has been happening for quite a long time, not only in a particular country or region, but in the whole world. However, many people is dying in custody each year. The deaths while in custody remains a very controversial topic as it is believed that the main reasons of these deaths are kept in darkness from the world.
When a person is beaten to death in police custody, the very event, even without the need of any propaganda, generates an image which retrospectively justifies it: the victim would not be beaten so badly if he/she were not a ‘desperate’ criminal or an otherwise dangerous individual.
The police usually add their flourish to the image by describing as the victim’s crimes all the charges they have written down in the FIR, some of them even perhaps as an afterthought necessitated by the very death. custodial violence is used not invariably but rationally or ‘judiciously’ by the police in the course of the investigation of crimes, the image acquires respectable solidity.
2.Meaning of custodial death:
The word custody implies guardianship and protective care. Even when applied to indicate arrest or incarceration, it does not carry any sinister symptoms of violence during custody. No civilized law postulates custodial cruelty – an inhuman trait that springs out of a perverse desire to cause suffering when there is no possibility of any retaliation.
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The Lawyers & Jurists(Bangladesh).Human Rights Watch, Bangladesh: End Custodial Deaths of Massacre Suspects, 24 April2009, available http://www.unhcr.org/refworld/docid/49f557118.html [Retrieved February 21, 2011],para-1.
Economic and political weekly(India) ,K Balagopal,nov22, 1986.page:2028.
A senseless exhibition of superiority and physical power over the one who is overpowered or a collective wrath of hypocritical thinking. It is one of the worst crime in the civilized society, governed by the rule of law and poses a serious threat to an orderly civilized society. Torture in custody flouts the basic rights of the citizens and is an affront to human dignity.
The definition of a death in custody has been both problematic and contested. Persons who are detained by custodial authorities clearly fall into the classic definition of persons in custody. Inclusion of persons who police are attempting to detain has encountered resistance from police authorities
Therefore deaths in custody include deaths in institutional settings such as a police van, police or prison cell or in a hospital after transfer from a custodial authority. It also includes deaths from police pursuit such as police car chases or gunshot (by police or deceased) when the police are attempting arrest.
3.Human rights standards and deaths in custody:
Human rights are “rights and freedoms to which all humans are entitled”. These rights protect us from severe political, legal, and social abuses. A few examples of human rights are the right to freedom of religion, the right to a fair trial when charged with a crime, the right not to be tortured, the right to engage in political activity, and the right to life. All these rights are protected by law for the wellbeing of a society. These rights, if violated, can lead to severe consequences or penalties if proved guilty to the sovereign authority
Every unnatural death in custody presents a human rights issue. In this report, we
examine the problem of deaths in custody in light of the human rights obligations of the
institutions which compulsorily detain people, and those which investigate deaths of
people who are so detained.
These institutions are subject to a number of obligations.Under the Human Rights Act 1998, the police and prison service are “public authorities”
with obligations to comply with rights under the European Convention on Human Rights,
including the right to life.
Private contractors operating prisons, immigration removal centers and mental health detention facilities are also considered to be public authorities.
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Australian Human Rights Commission
www.articlesbase.com/criminal-articles/custodial-death.colunm (1).
The Lawyers & Jurists(Bangladesh).Human Rights Watch, Bangladesh: End Custodial Deaths of Massacre Suspects, 24 April2009, available http://www.unhcr.org/refworld/docid/49f557118.html [Retrieved February 21, 2011].para-3,
when exercising powers of detention delegated to them by the state, and are therefore also required to comply with Convention rights. In international law, the state, in protecting people in its custody and in investigating deaths, has obligations to comply with international standards, including those under the European Convention on Human Rights, and United Nations human rights treaties.
Establishes the right to life, the most fundamental of the Convention
rights, and a core protection against deaths in custody.
It provides—
A. Everyone’s right to life shall be protected by law. No one shall be deprived of his life
intentionally save in the execution of a sentence of a court following his conviction of a. crime for which this penalty is provided by law.
B. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary—
a. in defense of any person from unlawful violence
b. in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
c. in action lawfully taken for the purpose of quelling a riot or insurrection
C. A number of other Convention rights are also important in protecting against ill- treatment, that may lead to deaths in custody. It provides—
D. No one shall be subjected to torture or to inhuman or degrading treatment or
punishment.
E. it also protects against physical ill-treatment or neglect which may not attain the
severity of treatment . It provides—
F. Everyone has the right to respect for his private and family life, his home and his
correspondence.
4. Custodial Death and Human Rights Concerns around the World:
In Bangladesh, a huge battalion of Bangladesh Rifles (BDR) killed more than seventy army officers and others dead in February 25 and 26, 2009. After that, most soldiers of Bangladesh Rifles were held in prisons as suspects for the massacre.
More than a thousand soldiers including twenty civilians were detained, and the others are still in the police custody. From a statement of the Bangladesh Rifles on April 23, 2009,
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The House of Lords and the House of Commons London: The Stationery Office Limited. Third Report of Session 2004–05 (Volume I)
Published on 14 December 2004
it was said that “Sixteen detainees have died in custody – four from suicide, six from heart attacks, and six from other diseases.
But Brad Adams, Asia Director at Human Rights Watch said that he couldn’t find a solid reason for which the detainees have committed suicide, and thus, he has urged the government to take immediate actions to stop such deaths in custody.
From credible sources in Bangladesh, reports were found by the Human Rights Watch on torture of detainees while they were in custody. One of the suspects told that he was tortured with electric shocks for seven days by the Rapid Action Battalion (RAB). After the death of another suspect, a family member said that he was in good health before taken into custody and has no reason of sudden death. In a medical report of a dead suspect, wounds of torture were inflicted, which the authority denied by saying that the wounds may have been caused while they were trying to escape following the rebellion.
Adams said that these explanations are not credible and that “torture is a regular ‘investigation technique’ in Bangladesh and killing of detainees in custody is an endemic problem.” The detained suspects have been denied access to family and lawyers in most cases.
In Vietnam, Human Rights Watch reported that they have received nineteen documents of brutality cases in twelve months till September 2010, which resulted in deaths of fifteen people. Deaths in custody were reported from major cities in Vietnam which has provoked the public protestant in the country and raised serious concerns.
In a few cases, the detainees died due to massive beatings while in custody of the police or civil defense force, and in other cases, people died in public areas where the police used excessive forces. In many cases, detainees are taken into custody and killed for minor violations of law.
In June 30, 2010, a person died in police custody after being detained following a dispute with his mother. In another case, which was on July 23, 2010, a man was arrested for riding a motorbike without a helmet. He was then taken is custody for questioning and hours later, it was reported that he died. This has raised serious concerns in Vietnam for such a custodial death.
In all these nineteen incidents in just twelve months time, not a single involved police officer was convicted by the local court for their actions. There have been major protests by the media as the government has high restrictions and control over their local press. Only a few police officers have been detained or suspended, which was caused due to media exposure of the incidents and severe protests from the public. Unless the government shows serious concerns regarding such human rights issues, it is very uncertain that such killings can ever be stopped. In Afghanistan, a soldier named Jamal Nasser died in March 16, 2003 while in custody of the United States Army. After eighteen months of his death, it was reported that his death attributed to a kidney infection. Later on, investigations found that the cause was just a fiction. According to Senator Patrick Leahy, “The detainee, Jamal Naseer, died in March 2003, allegedly after weeks of torture by American soldiers. Because the Special Forces unit that reportedly controlled the detention facility failed to report the death, it was never investigated. This incident is very troubling on its own, but, like so many other incidents we have discovered, it points to a much larger problem. The U.S. Army Criminal Investigation Command received a tip about Naseer’s death earlier this year, but could not investigate the matter due to a lack of information. An army detective at Bagram Airbase told the LA Times that there are no records for which they weren’t able to conclude the investigation process.
5. Condition of Custodial Deaths in home and abroad:
Custodial deaths are referred to those deaths, while in custody of the police, prison service, or other authorities. The causes of these deaths or we can say that the custody authorities are often accused of abuse, cover-ups, racism and neglect. Some examples of custodial deaths are Operation Clean Heart by the government of Bangladesh where a minimum of 32 people died; death of about 100 prisoners in United States custody in Iraq and Afghanistan since 2002; and at least 650 people were killed in Jamaica by the police officers in 1999 which were all unlawful killings, but none of them were convicted since then.
6. Some thrash out custodial death cases:
A. Dhaka, July 6– Three officers of Dar-us-Salam Police Station have been suspended following the death of an alleged drug peddler in police custody. The victim was arrested (Mojibur Rahman, 45), for his alleged involvement with drug peddling.
B. An auto rickshaw driver was killed in custody on June 28.
C. Kugan, 23, was arrested in January 2009 in Puchong for allegedly stealing luxury cars. Barely days after, he was found dead inside the lock-up of the Taipan police station in USJ-Subang Jaya. A post-mortem declared his death as “fluid accumulation inside the lungs”. But eyewitnessess told a different story. They said the cop Navindran whacked Kugan with a rubber hose. A second post-mortem commissioned by Kugan’s family revealed that apart from being beaten, he had also been burnt and starved, all of which led to Kugan’s death.
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bdnews24.com/mhc/ha/ost/nir/2345h.
The Lawyers & Jurists(Bangladesh).Human Rights Watch, Bangladesh: End Custodial Deaths of Massacre Suspects, 24 April 2009, available .http://www.unhcr.org/refworld/docid/49f557118. html [Retrieved February 21, 2011].para-5, www. Tindak Malaysia.com. (Police: Death of justice in police custody) date-05feb,2011.pageno-1.para-7.
D. On Jan 3 this year, police arrested electrician Krishnan, 37, on a drug-related offence. Four days later, Krishnan was found dead inside the Bukit Jalil police cell, with a Hospital Universiti Kebangsaan Malaysia post-mortem concluding he died from stomach ulcer. A preliminary report on the second autopsy conducted by Universiti Malaya Medical Centre concurred with the earlier finding
Reason of custodial deaths:
Four main aspects of
Violence:-
A. Torture-
a) Mental
b) Physical
B. Sexual Harassment
C. Rape
D. Death.
Torture:
Torture in custody flouts the basic rights of the citizens and is an affront to human dignity.
In all custodial crimes what is of real concern is not only the infliction of body pain but the mental agony which a person undergoes within the four walls of police lock-up. It is the real face of torture.
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Rajasthan state human rights commission, jaipur. (project by law st. ). Prepared by:- Internship students of various law university and colleges. Under the guidance of Hon’ble Mr. Justice N.K. Jain.
(Former Chief justice of Madras and Karnataka High Court) Chairperson, RSHRC SECRETARIAT 3.page no:09.date:06-07-2005.
www.Tindak Malaysia.com. (Police: Death of justice in police custody)date-05feb,2011.pageno-1.para-7.
Sexual Harassment:
Sexually abusive behavior of police officers towards the prisoners is a matter of deep
Concern. Prison officials treat prisoners as their pawn. They think that prisoners are the domestic servants and female prisoners are subject to satisfy their physical desire, therefore for accomplishment of this purpose they are sent to brothels. At times when they deny performing these tasks then the real picture of sexual harassment could be easily seen on the stage of reality.
Rape:
It is committed under the shield of uniform and authority within the four walls of a police station, the victim being totally helpless.
.
Rape by police, including custodial rape, is very common. A higher incidence of abuse appeared credible, given other evidence of abusive Behavior by police and the likelihood that many rapes were unreported due to a sense of shame and a fear of retribution among victims.
Death:
Custodial violence, including torture and death in the lock ups, strikes a blow at the Rule of Law, which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law
??????????????????????????????????????????????????????????????? Rajasthan state human rights commission, jaipur. (project by law st. ).
Prepared by:- Internship students of various law university and colleges. Under the guidance of Hon’ble Mr. Justice N.K. Jain. (Former Chief justice of Madras and Karnataka High Court)
Chairperson, RSHRC SECRETARIAT 3.page no(10-13).date:06-07-2005.
7. Law and step taken by government:
The police officers submit applications requesting the Magistrates’ Courts to handover the arrested persons to the police again for interrogation for extracting information regarding a particular criminal case. A Magistrate is authorized to grant such requests under Section 167 of the Code of Criminal Procedure-1898 by noting the specific reasons, if the police officer reasonably fails to complete the investigation of the relevant case within 24 hours.
According to Rule 458(a) of the Police Regulations of Bengal (PRB)-1943 the police shall submit an application by filling up Bangladesh Police (BP) Form No. 90 to the Court for “remand” of the detained person with pending result of police inquiry into the detained person and the application shall remain with record of the Court. As per Rule 458(b) of the PRB the Superintendent of Police, shall be informed if the “remand” is not granted by the Court due to insufficient reasons and, shall report to the District Magistrate regarding the matter.
In Bangladesh the police officers do not submit their applications by filling up the BP Form No. 90 whenever they seek remand for a detainee. Instead, the police send a manuscript petition on plain paper without the BP Form No. 90 by ignoring the guidelines prescribed by the PRB, which is mandatory for the police. The Magistrates, who are not adequately aware of the law and the rules, entertain the plain paper petition, which should not legally be considered as an application for remand at all, and grant remand to the police though it beyond the purview of the law of the land.
A verdict, pronounced by the High Court Division Bench of the Supreme Court of Bangladesh, as reported in the Dhaka Law Report (DLR) 55, page 376, directed the subordinate courts on how to entertain the application for police remand.
According the directives, “the Investigating Officer shall state in details the ground of taking the accused in custody (remand) and shall produce the case diary for consideration of the Magistrate. If the Magistrate is satisfied that the accused be sent back to police custody for a period not exceeding three days, after recording reasons, he (Magistrate) may authorize detention in police custody for that period.”
It also directed that “the accused, before sending to the Investigating Officer, shall be examined by a doctor designated or medical board constituted for the purpose and the report shall be submitted to the Magistrate concerned.”
After taking the accused “in police remand only the Investigating Officer shall be entitled to interrogate the accused” and after the period of remand “if the accused makes any allegation of any torture, the Magistrate shall at once send the accused to the same doctor or Medical Board for examination.”
“If the Magistrate finds from the report of the doctor or Medical Board that the accused sustained injury during the period under police custody he shall proceed under Section 190 (1) (c) of the Code of Criminal Procedure-1898 against the Investigating Officer for committing offence under Section 330 of the Penal Code-1860 without filing any petition of complaint by the accused.”
In reality, the Magistrates of Bangladesh do neither follow the instructions as per the PRB nor the directives given by the Supreme Court’s High Court Division.
8. Conclusion:
Many people have been killed and are still being killed while in custody of the state officials in almost every country. The state is responsible for the protection of its each and every single individual and the ones violating laws shall be detained or punished after the consequences has been sanctioned by the higher authority. But any kind of custodial deaths are unlawful as every human has the right to life, and they cannot be punished unless they are proved guilty. Custodial deaths fall under the Human Rights Act 1998, Article 2 which states that custodial deaths should be investigated and if not done, then it would be a breach of law. After studying this paper, we are able to conclude that custodial deaths have become a global human rights issue and these deaths are gross violation of Human Rights. The state must take all necessary steps in order to prevent deaths in custody, ensure that every individual is well protected by law, and only the ones proved guilty are punished or detained. Success in preventing will lead to the well being of the society.
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Asian human rights commission. February 21, 2010 from http://www.bbc.co.uk/news/world-asia- pacific- 11395809.
The Lawyers & Jurists(Bangladesh).Human Rights Watch, Bangladesh: End Custodial Deaths of Massacre Suspects, 24 April2009, available http://www.unhcr.org/ refworld/docid/49f557118.html [Retrieved February 21, 2011].para-7,
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9. RAJASTHAN STATE HUMAN RIGHTS COMMISSION
Prepared by:- Internship students of various law university and colleges.
Under the guidance of Hon’ble Mr. Justice N.K. Jain.
(Former Chief justice of Madras and Karnataka High Court)
Chairperson, RSHRC SECRETARIAT 3
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