General Assembly Third Committee: Social, Humanitarian and Cultural

Enhancing Standards and Ensuring Human Rights for People Under Police Custody and Detention

EuroAsia MUN Training and Development Conference 6-8 December, 2013 ANKARA

FOOD AND AGRICULTURE ORGANIZATION OF THE UNITED NATIONS

STUDY GUIDE

EuroAsia MUN 2014 Training and Development Conference

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General Assembly Third Committee: Social, Humanitarian and Cultural

Enhancing Standards and Ensuring Human Rights for People Under Police Custody and Detention LETTER FROM THE SECRETARY-GENERAL Esteemed participants I am Gökberk Ekinci, the Secretary-General of EuroAsia Model United Nations Training and Development Conference 2014. I feel more than honored to be welcoming you to the 9 th session of this ambitious work. Organized under the framework of Model United Nations Association of Turkey, in accordance with its vision to familiarize MUN related activities to young people in the country the EuroAsia MUN 2014 is eager to reach wide range of attendants from high schools and universities which are deeply interested in diplomacy, international relations, politics and the United Nations itself while constituting a unique experience of debating and socializing at the same time. This year, the conference takes it a step further as it is composed of 10 committees chosen delicately to the very attention of the mentioned variety of participants holding economic, social, humanitarian and real-time crisis committees as well as a joint cabinet crisis simulation which is a brand new practice for the training and development concept. The academic team embraces an understanding of content which concerns actual and urgent problems that the world faces currently in order to create awareness of the facts touched upon over the youth to which it addresses. The Third Committee will be discussing the agenda Enhancing Standards and Ensuring Human Rights for People Under Police Custody and Detention. The academic content and the structure of the committee have been prepared by the respected Under-Secretary-General Afra Teren Gürlüler. Carrying out her work outstandingly, Ms. Gürlüler has accomplished the preparation of the academic document regarding the very agenda which is deemed as one of the most important ongoing human rights problems in the contemporary world. I advise the participants of this well-prepared committee to read the provided guide thoroughly. You may also go over further readings and key documents which you may find on our website with the study guide. For any further questions, please do not hesitate to contact me via [email protected]. Best regards Gökberk Ekinci Secretary-General of EuroAsia MUN Training and Development Conference 2014 EuroAsia MUN 2014 Training and Development Conference

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General Assembly Third Committee: Social, Humanitarian and Cultural

Enhancing Standards and Ensuring Human Rights for People Under Police Custody and Detention

LETTER FROM THE UNDER-SECRETARY-GENERAL Dear Participants, I have the utmost pleasure and honor of welcoming you to EuroAsia MUN 2014. I am Afra Teren Gürlüler, a sophomore student in Koç University Law Faculty and started my double major with International Relations this semester. It’s my honor to serve as the UnderSecretary-General responsible for General Assembly Third Committee: SOCHUM. I have been participating in several simulation conferences in last 5 years such as Model United Nations, European Youth Parliament and court simulations. Human Rights violation under police custody and detention are widely common problem in 21st century so I believe the committee needs to work a lot in order to try to create better conditions for people under custody or detention. While preparing the study guide I got a chance to see broader aspect of human right violations all around the world and I enhanced my knowledge. So I would like to thank to Secretary-General Mr Gökberk Ekinci and Nezahat Yeşim Yargıcı for giving me this opportunity. I am looking forward to observe the debates in EuroAsia MUN. For any of you inquires please feel free to contact with me from [email protected] . Regards Afra Teren Gürlüler Under-Secretary-General

EuroAsia MUN 2014 Training and Development Conference

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General Assembly Third Committee: Social, Humanitarian and Cultural

Enhancing Standards and Ensuring Human Rights for People Under Police Custody and Detention INTRODUCTION TO THE THIRD COMMITTEE

domestically. It would be beneficial to compare the international legal documents with

United Nation’s 3

rd

Committee of the

General Assembly is known as Social Cultural and Humanitarian Committee (SOCHUM).

SOCHUM

is

primarily

focuses on preserving human rights and tries to enhance globally high standards for the protection of human rights. The Committee was founded in 1948 in order

the

domestic

legal

regulation

especially in the problematic countries. Then the members should try to widen the protection of human rights during custody and detention both legally and practically. As explained below, there are very strong and binding legal regulations protecting human rights but still in practice a lot problems occur regarding implementation.

to comprehend the problems and create

International

solutions for social development and

renounce its stand against violation of

humanitarian crises. SOCHUM deals with specific human rights, including women’s

community

needs

to

custody rights with more practical and enforceable measures.

rights and advancement of women, rights of refugees, protection of children’s rights and so forth. Human rights are violated in several areas around the world. Violations under police custody and detention are a widespread problem. Deaths during custody and torture cases are reported from every part of the world. SOCHUM will examine the situation worldwide and will try to set global standards in order to protect the

A. Introduction to the Problem And Definitions I.

Definitions

Police custody is also called as an arrest. Legally custody is: “a seizure or forcible restraint; an exercis e of the power to deprive a person of his or her liberty; the taking or keeping of a per on in custody by legal authority, especially, in response to a criminal charge”i

human rights. In order to create comprehensive solutions Member States should identifies the problems

faced

during

custody and

detention first and then analyzes current

Custody aims to bring the arrestee before the court or to secure the administration of the legal procedure.

legal frameworks, both internationally and EuroAsia MUN 2014 Training and Development Conference

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General Assembly Third Committee: Social, Humanitarian and Cultural

Enhancing Standards and Ensuring Human Rights for People Under Police Custody and Detention Police detention is described as any form

(d) the detention of a minor by lawful

of imprisonment in broad sense.

order for the purpose of educational

To elaborate more on detention, it can be

supervision or his lawful detention for the

defined as legally removing of an

purpose of bringing him before the

individual’s

competent legal authority;

liberty

by

government

officials. As Criminal Law of United

(e) the lawful detention of persons for the

Kingdom explains; "a person is in police

prevention of the spreading of infectious

detention for the purposes of this Act if –

diseases, of persons of unsound mind,

(a) he has been taken to a police station

alcoholics or drug addicts or vagrants;

after being arrested for an offence…

(f) the lawful arrest or detention of a

(b) he is arrested at a police station after

person

attending voluntarily at the station or

unauthorised entry into the country or of a

accompanying a constable to it.”ii

person against whom action is being taken with

Legal reasons for a detention or arrest are explained in the Article 5 of European

to

a

prevent

view

to

his

effecting an

deportation

or

extradition.”iii

conviction by a competent court;

B. Human Rights and International, Regional Instruments of Protection of Human Rights

(b) the lawful arrest or detention of a

Before explaining special rights under

person for noncompliance with the lawful

custody and detention, it would be

order of a court or in order to secure the

beneficial to analyze human rights concept

fulfilment of any obligation prescribed by

as general.

law;

Human rights are protected de jure under

(c) the lawful arrest or detention of a

every circumstance.iv These are the rights

person effected for the purpose of bringing

which are universal, meaning that people

him before the competent legal authority

have them regardless of their gender,

on

having

sexual orientation, race and criminal

committed an offence or when it is

record, religion or any other kind of

reasonably

to

distinction.v The universality of human

prevent his committing an offence or

rights is the concept which is the main

fleeing after having done so;

root of international human rights law.

Convention on Human Rights as follows: “a) the lawful detention of a person after

reasonable

suspicion

considered

of

necessary

EuroAsia MUN 2014 Training and Development Conference

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vi

General Assembly Third Committee: Social, Humanitarian and Cultural

Enhancing Standards and Ensuring Human Rights for People Under Police Custody and Detention According to Universal Declaration of

rights. Other basic rights that are set forth

Human Rights (UDHR) States are obliged

in the UNDH are right to life (Article 3),

to take positive action to protect human

right to not to be tortured (Article 5), right

rights of individuals. Also states have to

to equal protection of law (Article 7).ix

not interfere with the rights of the

UNDH is accepted by many states and its

individual which means state officials

clauses are perceived as a

should also take negative action.vii

standards, or customary law. As a

One of the most significant texts behind

consequence, it is claimed that the

the development of the human rights law

declaration creates a minimum of human

is the Universal Declaration of Human

rights protection for every state and their

Rights.

citizens.

According

to

Article

1

of

general

Universal Declaration of Human Rights,

It should be noted that any kind of

all people have these rights without any

distinction is prohibited while exercising

discrimination

the

the human rights. The list of prohibited

entitled rights by being born and receive

discriminatory criteria is not exhaustive so

them equally. In Article 2, UDHR states

a change in modern society or a new status

that “Everyone is entitled to all the rights

has to follow this general principle.x

and freedoms set forth in this Declaration,

International Covenants on Human Rights

without distinction of any kind, such as

are supportive and more specific another

race, colour, sex, language, religion,

important international instruments. These

political or other opinion, national or

covenants

social origin, property, birth or other

Covenant

on

status. Furthermore, no distinction shall

Cultural

Rights

be made on the basis of the political,

Covenant on Civil and Political Rights.

jurisdictional or international status of the

Each Covenant (ICESCR) states that

country or territory to which a person

every individual has right to self -

belongs, whether it be independent, trust,

determination.xi

non-self-governing or under any other

a.

and

they receive

viii

limitation of sovereignty.”

This Article

are

namely

International

Economic,

Social

and

and

International

Right to Life

Right to life is the most valuable and

explains that none of the states can

primary human right: every person has it

propose an excuse to not to perform

and no one can breach it.

obligations regarding protection of human EuroAsia MUN 2014 Training and Development Conference

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General Assembly Third Committee: Social, Humanitarian and Cultural

Enhancing Standards and Ensuring Human Rights for People Under Police Custody and Detention Article 7 of UDHR is as follows:

“Contracting State shall expel or return

“Everyone has the right to life, liberty and

("refouler") a refugee in any manner

security of person.”xii Additionally the 6th

whatsoever to the frontiers of territories

Article of International Covenant on Civil

where his life or freedom would be

and Political Rights states that “Every

threatened on account of his race,

human being has the inherent right to life.

religion, nationality, membership of a

This right shall be protected by law. No

particular

one shall be arbitrarily deprived of his

opinion.”xvii

life.”xiii In 1984 International Law experts

refugees’ right to life is under threat in the

met

limitations and

country of origin, the hosting country

derogations of ICCPR. According to

cannot force him to go back to his own

Siracusa Principles, governments cannot

country.xviii

derogate from several duties at any time,

In addition to the international legal

one of them being the protection of

instruments there are several regional

individual’s right to life.xiv Right to life is

instruments

a

Council of Europe’s Convention for the

to

discuss

non-derogable

the

right.

Protocol

social

group

or

political

This Article means if a

protecting

Rights

life.

Protection

12 August 1949, and relating to the

Fundamental Freedoms as amended by

Protection of Victims of International

Protocol No.11 states that every human

Armed Conflicts (Protocol I) states that

has a right to life and the domestic law of

civilians’ right to life is totally protected

the State Parties should also protect this

during an armed conflicted and they

right. In Article 2 it also says:

cannot be subject of an attack.

Human

to

Additional to the Geneva Convention of

xv

of

right

and

“Deprivation of life shall not be regarded

Most of the time, there are vulnerable

as inflicted in contravention of this article

groups, whose right to life is threatened so

when it results from the use of force which

there are some more specific international

is no more than absolutely necessary:

legal instruments to protect their right to

in defence of any person from unlawful

xvi

life.

These vulnerable groups, in most

violence;

of the cases, are children, refugees,

in order to effect a lawful arrest or to

minorities. For example, in Article 33 of

prevent the escape of a person lawfully

Convention

detained;

Refugees,

Relating it

has

the

been

Status stated

of that

EuroAsia MUN 2014 Training and Development Conference

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General Assembly Third Committee: Social, Humanitarian and Cultural

Enhancing Standards and Ensuring Human Rights for People Under Police Custody and Detention in action lawfully taken for the purpose of

law.”’xxii

quelling a riot or insurrection.”xix

order to take an individual under arrest or

African Union’s Charter on Human and

detention, officials have to follow legal

People’s Right is the main legal

rules and procedures. Otherwise arrest or

This Article explains that in

instrument that protects right to life in

detention would be accepted as a breach

xx

of the right of liberty.xxiii As European

African Union Countries. (Article 4)

Convention on Human Rights Article 5 b.

explains, in order to call a detention legal,

Bodily Integrity

Physical integrity (bodily integrity) is

a competent court should convict the

another important human right. Bodily

detention.xxiv

integrity means respecting the unity of an

determine

individual’s body. The protection of

procedure of arrest or detention for

bodily

medical

transparency and lawfulness. Law should

intervention without patient’s consent,

openly state the reasons and conditions for

rape, forced abortion, beating, and forced

that necessitate arrest or detention because

amputation, unwanted pregnancy, and it is

these enforcements would disrupt the

complemented by prohibitions against

liberty of a person. So the officials should

domestic violence, prohibition of slavery

not be able to find any gap or lack of

and forced labor, right to life, prohibition

codification in the law and use it in order

of torture and inhuman treatments.xxi

to abuse their power and detain an

integrity

prohibits

Domestic laws should

the

individual

framework

arbitrarily.

for

legal

Arbitrarily

detainment means holding an individual c.

without a judicial decision.xxv

Right to Liberty

Right to liberty is an important freedom mentioned

in

UNDHR

Article

3.

Additionally ICCPR Article 9 declares “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by

C. International and Regional Instruments Regarding the Protection of Human Rights during Police Custody and Detention Several

legal

instruments

such

as

conventions, multilateral agreements and treaties

regulate

EuroAsia MUN 2014 Training and Development Conference

police

custody and Page 7

General Assembly Third Committee: Social, Humanitarian and Cultural

Enhancing Standards and Ensuring Human Rights for People Under Police Custody and Detention detention

on

an

international

level.

subject to separate treatment appropriate

However it must be noted that conventions

to their status as unconvicted persons; (b)

on human rights also protect the rights of

Accused

the people under custody or detention,

separated from adults and brought as

even if they do no not have any special

speedily as possible for adjudication.”xxvi

provision regarding the circumstance. This

As ICCPR declares in the first paragraph

is due to the fact that ill-treatment or

of Article 10, officers have to protect

arbitrary detention contradicts a minimum

human rights of arrestees and detained

standard of human rights provided in

people. Also conditions during arrest and

many

For

detention have to protect the physical and

example even if a country’s regulation on

mental status of the individual. An

custody does not include provisions on

arrestee

torture, according to international law

people, since there is the individual is yet

police officers still cannot torture due to

to be convicted and should not be treated

basic human rights provided to the

and seen as a convicted person. Underage

individual

accused people are protected in special

international

through

instruments.

international

juvenile

cannot

Due

persons

stay with

to

shall

be

convicted

documents.

conditions.

psychiatric

and

In order to go in depth of the topic, a

pedagogical reasons, they should not stay

distinction must be made between an

with adults when under arrest.xxvii Officers

arrestee and a convicted person. An

who are dealing with juvenile or child

arrestee is a person who is under arrest for

arrestee should be trained especially for

investigation or in order to put in front of

the job and they should be very careful

court. On the other hand convicted person

with their language and behavior around

is found criminally guilty by the decision

the underage arresteexxviiibecause post-

of court.

arrest affects can be seen for long periods

ICCPR Article 10 says; “1. All persons

of time. For example, it is documented

deprived of their liberty shall be treated

that juvenile arrestees drop out of school

with humanity and with respect for the

in the early age.xxix

inherent dignity of the human person.

a.

2. (a) Accused persons shall, save in

Prohibition of torture is a significant legal

exceptional circumstances, be segregated

concept when examining the human rights

from convicted persons and shall be

violations under police custody and

Prohibition of Torture

EuroAsia MUN 2014 Training and Development Conference

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General Assembly Third Committee: Social, Humanitarian and Cultural

Enhancing Standards and Ensuring Human Rights for People Under Police Custody and Detention detention since it constitutes a violation to

or suffering arising only from, inherent in

physical integrity and life. Integrity of

or incidental to lawful sanctions.”xxxi This

body is one of the main legal interests

convention is important because it openly

protected by international human rights

states that there could not be any reason,

law

which

protecting

the

inviolability

of

justifies

the

torture.

This

individual’s physical body and activities

convention also forces states to accept this

such as torture violate bodily integrity.

prohibition in national legal frameworks

Article 5 of the UNDHR and Article 3 of

too.

European Convention on Human Rights

“Each State Party shall ensure that

says “No one shall be subjected to torture

education and information regarding the

or cruel, inhuman or degrading treatment

prohibition against torture are fully

or punishment.”

xxx

In the Article 10 of the ICCPR;

included

in

the

training

of

law

Convention against Torture and Other

enforcement personnel, civil or military,

Cruel, Inhuman or Degrading Treatment

medical personnel, public officials and

or Punishment is one of the main legal

other persons who may be involved in the

instruments regarding the human rights.

custody, interrogation or treatment of any

This convention defines torture. “Torture

individual subjected to any form of arrest,

means any act by which severe pain or

detention or imprisonment.”xxxii According

suffering, whether physical or mental, is

to

intentionally inflicted on a person for such

responsible to train and supervise police

purposes as obtaining from him or a third

officers to make sure rights of the

person information or a confession,

individuals are protected under custody,

punishing him for an act he or a third

detention

person has committed or is suspected of

Governments have to ensure every single

having committed, or intimidating or

person who involves to custody process

coercing him or a third person, or for any

has

reason based on discrimination of any

education.xxxiii

kind, when such pain or suffering is

Children are accepted as a vulnerable

inflicted by or at the instigation of or with

group so there has to be more protection

the consent or acquiescence of a public

over

official or other person acting in an

Convention on the Rights of Children

official capacity. It does not include pain

states that: “No child shall be subjected to

this

Article,

or

necessary

them

EuroAsia MUN 2014 Training and Development Conference

governments

during

interrogation.

information

by law.

are

Article

and

37

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of

General Assembly Third Committee: Social, Humanitarian and Cultural

Enhancing Standards and Ensuring Human Rights for People Under Police Custody and Detention torture or other cruel, inhuman or

though people under police custody or

degrading

detention are not necessarily named as

Neither

treatment

capital

or

punishment. nor

life

prisoners, unless they were not legally

possibility

of

committed to prison as a punishment for

release shall be imposed for offences

criminal offense of while awaiting trial,

committed by persons below eighteen

these regulations should be applicable

years of age.”xxxiv

too.xxxvii This Convention states that the

imprisonment

punishment

without

prisoners should have good life standards Capital punishment -also known as the

such as providing them a clean drinking

death penalty- is when a person is put to

water, proper food, physical activities and

death as a punishment by state. Capital

open air time.xxxviii These are basic

punishment against the underage is also

material and psychological needs of every

prohibited by the ICCPR article 6. The

human

right to life of children is protected in the

governments have to satisfy these needs

most possible highest standards.

without asserting any excuse under the

On occasions, when a person is under

Standard

police custody or a detention for a

Treatment of Prisoners.

political reason, the officers can regard

In national legal frameworks there are

him/her as a threat against the state so this

several examples of regulation of police

increases the chance of exposure to harm

custody and detention. One of the best

of the physical integrity of the arrestee. xxxv

examples is the Police and the Criminal

In order to prevent this, International

Evidence Act 1948 in United Kingdom

Covenant on Civil and Political Rights can

and Northern Ireland. This Act regulates

be applicable in these cases. In the Article

the procedures of the officers during

7, the Covenant states that no one can be

custody and detention; additionally it

tortured

limits the power of the police then creates

because

of

their

political

ideologiesxxxvi.

being;

consequently

Minimum

Rules

for

the

the

a ‘checks and balances system’ to prevent the

power abusesxxxix. The legislation specifies

Prevention of Crime and the Treatment of

each power of the police and explains how

Offenders

adopted

Standard

Minimum

United

Nations

Congress

on

convention

for

police can use its powers.

Rules

the

Another

for

Treatment of Prisoners in 1995. Even

domestic

legal

framework

example is Turkish Police Power’s and

EuroAsia MUN 2014 Training and Development Conference

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General Assembly Third Committee: Social, Humanitarian and Cultural

Enhancing Standards and Ensuring Human Rights for People Under Police Custody and Detention Duties Law explains what police officers

State must respect all of the legal rights

can do or cannot do during interrogation.

of the individual.xliii

Also Turkish Penal Code deems torture as a crime.xl b.

During custody and detention, people Due Process of Law

still own legal rights and the violations

Due process of law is fairness and

during these phases can be accepted as

transparency

during

due process of law violation.

proceedings.xli

According

all to

legal Fifth

due process of law.xlii This concept

D) Problems Regarding Violation of Human Rights Under Police Custody and Detention

includes pre-trial phase (custody), trial

(Figure 1 Guantanamo Prison)xliv

phase and post-trial phase (detention).

As it was explained above, during police

With the guarantee of due process of

custody and detention, there are several

law, government cannot arrest anyone

common human rights violations. The

and hold them under custody arbitrarily.

most known ones are torture and damage

Amendment of US Constitution no one can be deprived from liberty without the

EuroAsia MUN 2014 Training and Development Conference

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General Assembly Third Committee: Social, Humanitarian and Cultural

Enhancing Standards and Ensuring Human Rights for People Under Police Custody and Detention to physical integrity. xlv Especially in order

“obey the order” and become “a loyal

to force arrestees to confess or obtain

citizen”.li

information from them, there have been

Torture can be conducted by causing

reports from various countries that police

severe harm on body of the accused.

officers often use torture as a method.

Examples

Even though torture is the most common

beating

violation,

important

permanent damage to sexual organs,

concepts regarding the issue, both are

burning, dental damage, starvation,

given in detail below.xlvi

forced body positions.lii Mental torture

I.

there

Police

are

other

Brutality

and

Torture Convention against Torture and Other Cruel,

Inhuman

or

Degrading

Treatment or Punishment was signed on 10 December 1984.xlvii There are 156 state parties, 80 signatories and 20 ratifications. This Convention states that governments have to take actions in order to prevent torture. According to definition of torture, torture can only be done by an officer who derives his/her power and position from public authority. xlviii So in cases of custody and detention, brutality of police officers can be classified as torture if they have a specific reason and intention to damage the person physically or mentally. xlix The reason can be obtaining and information from the accused.l Another reason can be

are; to

electrical

death,

shocking,

rape,

assault,

is also common and it can be conducted by threatening to harm the family of the person, forcing to watch or listen to the torture of another person.liii Corporal punishment is also related to issue and it is defined as "Any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light.”liv Corporal

punishment

is commonly

mentioned by the United Nations in various

resolutions.

punishment

became

Corporal internationally

illegal however still there are thirtythree countries in the world lawfully practice Judicial Corporal Punishment. “State officials, and other persons acting in

an

official

capacity,

must

not

themselves inflict, instigate, consent to, acquiesce in, or authorize, any act of torture or other ill-treatment.”lv

“disciplining” the suspected person to EuroAsia MUN 2014 Training and Development Conference

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General Assembly Third Committee: Social, Humanitarian and Cultural

Enhancing Standards and Ensuring Human Rights for People Under Police Custody and Detention In some cases police brutality involves

state that the officers use various methods

sexual harassment and rape. Especially

for torturing the prisoners, some causing

female arrestees are threatened sexually. lvi

serious psychological devastation and

Some

the

problems. For example, isolating detainees

Convention against Torture and Other

for long periods of time (3 months and

Cruel, Inhuman or Degrading Treatment

more) in a room always lit with florescent

or Punishment. For example India signed

light. After isolation many detainees

the convention but did not ratify it so it is

showed physiological disorders such as

not in force for India. Additionally, India

talking with non-existing people.lxiiIt was

does not have any special offense for

also reported that during interrogations

torture but it is mentioned in the Penal

officers use very loud music in order to

Code however the offense attracts no

distract the detainees.lxiii

particular relevance if the crime is

In China, it is reported that in some cases,

committed by a police officer.lvii It is also

detainees are used in order to torture other

reported that Indian officers accept torture

detainees. According to some sources, if a

as a regular method for investigation

detainee beats another one, he receives

countries

not

ratify

Last July a 16 years old

reducing of imprisonment time.lxiv Other

boy died after being beaten by officers all

types of torture in prisons of China are

night long.lix

several

during arrest.

lviii

did

"India has the highest

forced

body

positions.

For

number of cases of police torture and

example detainees are forced to stand

custodial

world's

outside in very cold weather.lxv Sometimes

democracies and the weakest law against

arrestees are tied to wall or to the heater

torture" said Ravi Nair, who heads the

core.lxvi

South Asia Human Rights Documentation

Other reports claim that in Russia, prison

Center. lx

conditions are not livable. For example a

Another example can be Guantanamo Bay

Chechen woman who stayed in Russian

Prison, which belongs to the United States

prison for 8 years stated that there was no

and is located in Cuba. The prison is

hot water or usable toilets.lxvii She claims

known to have a reputation for constant

that she was beaten by the officers.lxviii

cases of torture. More than 100 prisoners

All the examples given above are small

did a hunger strike in order to protest the

indications of a bigger problem which

conditions in the prison.lxi Other reports

should not be linked to specific countries,

deaths among the

EuroAsia MUN 2014 Training and Development Conference

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General Assembly Third Committee: Social, Humanitarian and Cultural

Enhancing Standards and Ensuring Human Rights for People Under Police Custody and Detention but

should

as

(Figure

by

Amnesty

Amnesty International shows that in many

2014)lxix

worldwide.

be A

comprehended

study

conducted

2:

Survey

Conducted

International

on

May,

countries, citizens believe that, in the case when they are taken into custody, they will be tortured.

EuroAsia MUN 2014 Training and Development Conference

by

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General Assembly Third Committee: Social, Humanitarian and Cultural

Enhancing Standards and Ensuring Human Rights for People Under Police Custody and Detention II.

pursuant to a contract with or used by

Death In Custody

Custodial deaths are occurring in

such agency.’’lxxi

different parts of the world. This may

This act is important because it creates

be a consequence of torture, ill-

supervision over the officers. With the

treatment or uninhabitable facilities.

data government can perform a detailed

Death under custody means either

analysis on custodial deaths. For example in India, in 5 years, there

officers violated the bodily integrity and

have been 11820 custodial deaths.lxxii

consequently, violated the right to life

Reports show that these deaths are caused

of the person under custody or the state

by different circumstances. Some are

failed

reported as suicide, killed by other

to

provide

the

minimum

standards for survival in the detainment

detainees,

natural

facilities. It should be mentioned that,

malnutrition.lxxiii

causes,

and

according to Standard Minimum Rules for the Treatment of Prisoners, officers are also obliged to help arrestee on receiving adequate medical assistance if necessary.lxx United States of America passed Death in Custody Reporting Act of 2013. This act requires federal law agencies to keep track of the death of people who; ‘’is

detained or arrested by any officer of

such agency (or by any state or local law enforcement officer for purposes of a

Figure 3: File photo of Chinese prisoners having lunch at a jail in Beijing.lxxiv

federal law enforcement operation); or (2) is en route to be incarcerated or detained,

III. Denial of Access to Counsel

or is incarcerated or detained, at any

During

federal correctional facility or federal

suspected has a right to access a legal

pretrial detention facility located within

counsel or a lawyer. If an arrestee cannot

the United States or any other facility

afford a lawyer, the government has to

the

legal

proceedings

every

provide a legal counselor to him/her. For EuroAsia MUN 2014 Training and Development Conference

Page 15

General Assembly Third Committee: Social, Humanitarian and Cultural

Enhancing Standards and Ensuring Human Rights for People Under Police Custody and Detention example, in Canada, the right to counsel is

have an interpreter.lxxviii '’The U.N. Body

guaranteed with section 10 of Canadian

of Principles for the Protection of All

Charter of Rights and Freedoms upon.lxxv

Persons under any Form of Detention or

Also

of Criminal

Imprisonment (Body of Principles on

Instruction guarantees right to counsel.

Detention) states “[a] person who does

Many states which inspired from France

not adequately understand or speak the

criminal code have similar provisions. At

language

the beginning of the arrest, individual has

responsible for his arrest…is entitled to

to be informed promptly and in a language

have the assistance, free of charge, if

he/she can understands the reasons of

necessary, of an interpreter in connection

his/her arrest according to ECHR Article

with legal proceedings subsequent to his

lxxvi

3.

in

France, Code

The arrestee has to be brought in

used

by

the

authorities

arrest.”lxxix

front of a competent court and fair judge

The access to a legal counselor is

as soon as possible.

especially important for the people under

According to the International Covenant

age of 18 because they are unable to

on Civil and Political Rights (ICCPR)

defend themselves or find a lawyer for

right to counsel in legal proceedings, as

themselves. As a result, government

well as the right “to have adequate time

officials have to conclude their duty fully

and facilities for the preparation of…

and provide a legal assistance as stated in

[one’s] defense and to communicate with

the Article 37 of Convention on the Rights

counsel of his own choosing.”lxxvii

of Children, ‘’Every child deprived of his

Access to counsel is a due process of law

or her liberty shall have the right to

and if officers are not respecting this right,

prompt

they are breaching an important regulation

appropriate assistance, as well as the

of custody. The officers have to remind

right to challenge the legality of the

the rights to arrestee immediately.

deprivation of his or her liberty before a

In addition, access to a lawyer is not

court or other competent, independent and

enough to satisfy the necessities of

impartial authority, and to a prompt

regulation; the environment has to be

decision on any such action.’’lxxx

proper for legal consultancy. If a person is

After the proper legal counsel is provided,

unable to speak the same language with

the principle of habeas corpus should be

the officers, they are guaranteed a right to

executed. Habeas Corpus is one of the

access

EuroAsia MUN 2014 Training and Development Conference

to

legal

and

Page 16

other

General Assembly Third Committee: Social, Humanitarian and Cultural

Enhancing Standards and Ensuring Human Rights for People Under Police Custody and Detention most important rights each individual has

Organization allows incommunicado

and indicated that everybody has a right to

detention up to seven dayslxxxiv.

fair trial. According to this principle

Incommunicado detention can become a

officers cannot hold an arrestee for an

form of torture especially for the people

unlimited time. After a reasonable time

who require medical assistance.lxxxv For

arrestee has to be released or be put in

example, in Uzbekistan, there were

front of a court for a fair trial. For

reports of cases where prisoners on

example, a famous case is Zia-ur-Rahman,

politically motivated charges were not

an Afghan national, who had been taken

allowed to have medical examination

into custody in the US, in December

and reach to their medical reports.lxxxvi

2008.H was kept in custody for 5 years 6

Also their families were not informed

months without any charge or trial. He

about their medical situation.lxxxvii The

wrote a petition to the US District Court

general recommendations of the UN

stating that his right to a fair trial is not

Special Rapporteur on Torture similarly

satisfied however the judge decided court

state: ‘’Torture is most frequently

has no jurisdiction on the case. lxxxi

practiced detention.

during

incommunicado

Incommunicado

detention

IV. Incommunicado Detention

should be made illegal, and persons

Incommunicado detention is denied

held incommunicado should be released

access of family, relatives, attorney and

without delay.’lxxxviii’

physicians during detention.lxxxii United

Unannounced detention is one step further

Nations

than

repeatedly

incommunicado

states

detention

that

incommunicado

detention.

In

itself

addition to holding the arrestee without

constitutes a degrading and inhuman

letting him/her to contact anyone, the

act.lxxxiii

officers do not inform family or relatives legalized

of the arrestee about the custodylxxxix.

incommunicado detention in their fight

Because no one is aware of the detention,

with terrorism. For example in United

it is impossible to observe the behavior of

Kingdom, according to Terrorism Act

the officers and interfere in any form of

2000

violation of human rights.

Some

countries

have

forty-eight

hours

of

incommunicado detention is allowed.

‘’Every child deprived of liberty shall be

Australian

treated with humanity and respect for the

Security

Intelligence

EuroAsia MUN 2014 Training and Development Conference

Page 17

General Assembly Third Committee: Social, Humanitarian and Cultural

Enhancing Standards and Ensuring Human Rights for People Under Police Custody and Detention inherent dignity of the human person, and

international cooperation in order to

in a manner which takes into account the

influence domestic law systems

needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is

F) Points a Resolution Should Cover 

considered in the child's best interest not

human rights violations under

to do so and shall have the right to maintain contact with his or her family

custody and detention 

through correspondence and visits, save in exceptional circumstances’’ According

to

the

by

aforementioned

secret



Enhance

the

agreeing

on

common

Creation of concrete and unified regulations and rules for officers

or

incommunicado detention, are violating

to

measures

practicing or tolerating officers, who are unannounced,

Means

practicability of the existing law

xc

international law documents, any state

practicing

Analysis of the most common

working in detention facilities 

several human rights.

Revision

of

the

existing

standards for detention facilities

E) Conclusion

and

In conclusion, around the world, there

cooperation

are individuals facing with severe and

enhancement of such facilities

degrading treatments under custody and



creating

Methods

international

for

to

worldwide

ensure

the

detention including torture, death, and

individual’s right to access a fair

prevention of access to the necessary

trial

medical or legal assistance. Even with

worldwide detention procedures

international

legal

instruments



and

legal

counsel

in

Re-statement of the principles

governments are failing to satisfy the

behind

necessities of human rights. . The norms

torture, and creation of methods

set

international

to eliminate torture as a method

instruments are not incorporated to

for getting intelligence or a

national law systems, therefore ignored

method of punishment

by

forth

some.

by

How

the

to

create

better



prevention

against

Means to supervise the custodial processes and prevent abuse of

EuroAsia MUN 2014 Training and Development Conference

Page 18

General Assembly Third Committee: Social, Humanitarian and Cultural

Enhancing Standards and Ensuring Human Rights for People Under Police Custody and Detention power by state officials, adopted internationally

but

easily

applicable on national levels

EuroAsia MUN 2014 Training and Development Conference

Page 19

General Assembly Third Committee: Social, Humanitarian and Cultural

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