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Safeguards Against Torture for Those Deprived of Their Liberty

It is important for clinicians who conduct medical evaluations of torture and ill-treatment to be familiar with legal safeguards against torture for those deprived of their liberty. Everyone has the right to liberty and security of person — including the right to be free from arbitrary arrest or detention.[1] When the state deprives a person of liberty, it assumes a duty of care to maintain that person’s safety and to safeguard his or her welfare. Detainees are not to be subjected to any hardship or constraint other than that resulting from the deprivation of liberty.[2] These rights are guaranteed by Article 7 and 10(1) of the International Covenant on Civil and Political Rights (ICCPR) which, respectively, prohibit torture and ill-treatment and safeguard the rights of people deprived of their liberty. The prohibition on torture and ill-treatment apply to all people all the time. Certain rights in the treaties, such as the right not to be subject to arbitrary detention, may under certain circumstances be restricted in a public emergency, but safeguards necessary for the prohibition of torture, such as limiting periods in which people can be held in incommunicado detention, must continue to apply.[3]

Individuals may be at risk of torture or ill-treatment before they are subject to legal formalities such as arrest and charge. Indeed the European Committee for the Prevention of Torture (CPT) has stressed that it is during the period immediately following deprivation of liberty that the risk of torture and ill-treatment is at its greatest.[4] The following international standards, therefore, apply from the moment that someone is deprived of his or her liberty.

[1] Article 9 (1) International Covenant on Civil and Political Rights; Article 5 European Convention on Human Rights; Article 6 African Charter of Human and People’s Rights; Article 7 American Convention on Human Rights.

[2] Human Rights Committee, General Comment 21, Article 10 (Forty-fourth session, 1992), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRIGEN1Rev.1 at 33 (1994), para. 3.

[3] Human Rights Committee General Comment No. 29, States of Emergency (art. 4), adopted at the 1950th meeting, on 24 July 2001, para. 16. See also Aksoy v Turkey, ECtHR, Judgment 18 December 1996; Brannigan and MacBride v UK, ECtHR, Judgment 26 May 1993; Brogan v UK, ECtHR Judgment 29 November 1988; ‘Habeas Corpus in Emergency Situations’, Advisory Opinion OC-8/87 of 30 January 1987, Annual Report of the Inter-American Court, 1987, OAS/Ser.L/V/III.17 doc.13, 1987; and ‘Judicial Guarantees in States of Emergency’, Advisory Opinion OC-9/87 of 6 October 1987, Annual Report of the Inter-American Court, 1988, OAS/Ser.L/V/III.19 doc.13, 1988.

[4] European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment, the CPT Standards, Substantive Sections of the CPT’s General Reports, Council of Europe, October 2001, CPT/Inf/E(2002), p.12, para. 41.