The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is an international human rights treaty, under the review of the United Nations, that aims to prevent torture and other acts of cruel, inhuman, or degrading treatment or punishment around the world
The Universal Declaration of Human Rights, 1948 holds that ‘no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’ . This sentiment is similarly expressed in the International Convention on Political and Civil Rights, 1966 and the Geneva Convention, 1949 dealing with the protection of the prisoners of war .
Regional human rights instrument like the European Convention for the protection of Human Rights and Fundamental Freedoms, 1950 , the American Convention on Human Rights, 1969 and the African Charter on Human and People’s Rights, 1981 also carry the same sentiment . The General Assembly of the United Nations adopted in 1975 the Declaration on Protection of all persons from being subjected to Torture and other Cruel, Inhuman or Degrading Punishment and later, in 1977 the General Assembly mandated the UN Commission on Human Rights to draft a convention against Torture.
Accordingly, the drafting commenced in 1978. Finally in 1984, the convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (hereinafter referred to as CAT) was adopted. In its final form, the CAT was based substantially, but not exclusively, on the declaration against torture. The CAT entered into force on 26 June 1987. This is the first binding international instrument exclusively dedicated to the struggle against torture.
It is one of the most widely ratified human rights conventions with 141 state parties as of 26 January 2006. The CAT itself is supplemented by several other UN General Assembly initiatives promulgated in part as a result of pressure from global civil society. These developments included the drafting of the body of principles for the protection of all persons under any form of detention or imprisonment, the Code of Conduct for Law Enforcement officials, and the 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. In 1985, the UN Commission on Human Rights established the office of the Special Reporter on Torture. The treaty-making process and the enforcement mechanisms created by the United Nations are in itself an extremely important part of the efforts to universally eradicate torture.
Under international law, states parties are required to ensure that their domestic laws are in line with their obligation under the Conventions. By now, many states have enacted specific laws to implement their obligations under the CAT. References, for examples, can be made to the Australian Crimes (Torture) Act of 1988, the Mexican Federal Act to prevent and punish Torture of 1991, the Netherlands Act of 29 September 1988 for the implementation of the Convention against Torture and Other Cruel, inhuman or degrading treatment or punishment, the Sri Lankan Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Act, the Torture Prohibition Act of 1988 of Yukon Territory in Canada, the Crimes of Torture Act of 1989 in New Zealand and the Torture Act of 2000 in the United States.
Nevertheless, there are serious shortcomings in national laws purporting to implement Convention (CAT) obligations. This is primarily because; the implementation of the Convention has not attracted a high decree of public international interest and has in most countries not been a policy priority. Accordingly, less work and attention has been devoted to furthering the incorporation of the Convention into domestic law. In such a backdrop of international scenarios, audit on implementation of the CAT or any of its provision in the domestic arena of a country is utmost importance.
Constitutional and Treaty obligation
Torture is prohibited under the Constitution of Bangladesh which states: “No person shall be subjected to torture or cruel, inhuman or degrading punishment or treatment”. Even a person accused for criminal offence has the right to an independent, impartial trial which has been articulated in article 35(3)-“Every person accused of a criminal offence shall have the right to a speedy and public trial by an independent and impartial court or tribunal established by law”. Surprisingly there is no clear definition about torture in custody. But Bangladesh can authentically cite the definition of ‘torture’ from the Torture Convention as Bangladesh became the member of the convention on 5th Oct 1998. Name of some treaties are given below to demonstrate the position of Bangladesh regarding torture or similar issues—
|Human Rights convention regarding torture||
Date of Adoption/Signature
|Registration, Ratification, Accession(a),succession(d)|
|Convention on the Prevention and Punishment of the crime of Genocide, 1948.||
5 Oct 1998
|International Convention on Civil and Political Rights, 1966.||
7 Sep 2000
|Convention on the Elimination of All forms of Discrimination Against Women, 1979.||
6 Nov 1994
|Convention against Torture and other cruel, Inhuman or degrading treatment or punishment, 1984.||
5 Oct 1998
|Convention Relating to the statues of Refugees,1951.|
|International Convention of the Elimination of All forms of Racial Discrimination, 1966.||
11 June 1979
|Convention on the rights of the Child, 1989.||
26 January 1990
3 August 1990
The Torture convention was ratified by the government of Bangladesh in October, 1998 reserving the article 14 paragraph 1 of it, which states that “Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible.
In the event of the death of the victim as a result of an act of torture, his dependents shall be entitled to compensation.” While ratifying the CAT Bangladesh declared that it “will apply article 14 Para 1 in consonance with the existing laws and legislation in the country.” Again Bangladesh has not accepted the competence of either the Committee against Torture or the Human Rights Committee to received individual complaints about torture. In absence of any international mechanism, victims of torture can only recourse to the domestic remedies.
Definition of torture
Article 1.1 of the Convention defines torture as:
For the purpose of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him, or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in, or incidental to, lawful sanctions.
The words “inherent in or incidental to lawful sanctions” remain vague and very broad. It is extremely difficult to determine what sanctions are ‘inherent in or incidental to lawful sanctions’ in a particular legal system and what are not. The drafters of the Convention neither provided any criteria for making such determination nor did it define the terms. The nature of the findings would so differ from one legal system to another that they would give rise to serious disputes among the Parties to the Convention. It was suggested that the reference to such rules would make the issue more complicated, for it would endow the rules with a semblance of legal binding force. This allows state parties to pass domestic laws that permit acts of torture that they believe are within the lawful sanctions clause. However, the most widely adopted interpretation of the lawful sanctions clause is that it refers to sanctions authorized by international law. Pursuant to this interpretation, only sanctions that are authorized by international law will fall within this exclusion. The interpretation of the lawful sanctions clause leaves no scope of application and is widely debated by authors, historians, and scholars alike.
Ban on torture
Article 2 prohibits torture, and requires parties to take effective measures to prevent it in any territory under their jurisdiction. This prohibition is absolute and non-derogable. “No exceptional circumstances whatsoever” may be invoked to justify torture, including war, threat of war, internal political instability, public emergency, terrorist acts, violent crime, or any form of armed conflict. In other words, torture cannot be justified as a means to protect public safety or prevent emergencies. Subordinates who commits acts of torture cannot abstain themselves from legal responsibility on the grounds that they were just following orders from their superiors.
The prohibition on torture applies to anywhere under a party’s effective jurisdiction inside or outside of its borders, whether on board its ships or aircraft or in its military occupations, military bases, peacekeeping operations, health care industries, schools, day care centers, detention centers, embassies, or any other of its areas, and protects all people under its effective control, regardless of nationality or how that control is exercised.The other articles of part I lay out specific obligations intended to implement this absolute prohibition by preventing, investigating, and punishing acts of torture.
Ban on refoulement
Article 3 prohibits parties from returning, extraditing, or refouling any person to a state “where there are substantial grounds for believing that he would be in danger of being subjected to torture.” The Committee against Torture has held that this danger must be assessed not just for the initial receiving state, but also to states to which the person may be subsequently expelled, returned or extradited.
Ban on cruel, inhuman, or degrading treatment or punishment
Article 16 requires parties to prevent “other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1” in any territory under their jurisdiction. Because it is often difficult to distinguish between cruel, inhuman, or degrading treatment or punishment and torture, the Committee regards Article 16’s prohibition of such act as similarly absolute and non-derogable.
Other Municipal Laws
Torture has become integral part of the policing and the law-enforcement system, in the military, paramilitary and security forces for persons both in custody and otherwise.
The history of law enforcing agencies is undeniably related with the history of law and state. Earlier, it was supposed that a state is nothing but a political means to safeguard the economic interests of the class in power. Even though different attempts have been made to define ‘state’, popularly by state we understand a huge force. This force can be seen in the state laws, in institution like police, answer, BDR, armed forces, prisons etc. But with the development and progress of time most of the states takes the veil of welfare state where they demand to give the best treatment to the citizens according to their wealth. It has been argued that law enforcing agencies are necessary for protecting the good and punishing the evil. According to the Police Act of 1861 maintaining law and order is the principal function of the police.
The Code of Criminal Procedure prohibits police officers from inducement as well threat. Torture is used as a method of extracting money and confessions from the detainees. The term, ‘interrogation’ in police remand, the Joint Interrogation Cell and “Task Force of Interrogation” as part of criminal investigation is synonymous with torture.
The whole process becomes phrase where section. 161 of CrPC clearly declares the confession made the confession in the police station. In this regard a comparative discussion may be made, for example, in the United States any statement made to the police may afterward be used against the person making the statement. But according to our law and any statement recorded under 161 of the Code of Criminal Procedure, 1898 may afterwards be withdrawn by the person making the statement. Thus in reality the extent of using the evidence given under 161 against the person giving the same is very limited.