Independent Police Investigative Directorate Bill Association for the Prevention of Torture Association pour la prévention de la torture Asociación para la prevención de la tortura Portfolio Committee on Police 4 August 2010 Amanda Dissel: Delegate in South Africa

Prohibition of torture and cruel, inhuman or degrading treatment or punishment Universal Declaration of Human Rights (1948) International Covenant on Civil and Political Rights (1966) – ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) South African Constitution – Section 12: right not to be tortured or treated or punished in a cruel, inhuman or degrading way. Is absolute and non-derogable prohibition (ICCPR, Constitution). Robben Island Guidelines

Convention against torture and other cruel, inhuman or degrading treatment or punishment (UNCAT) South Africa ratified UNCAT in 1998 Right not to be tortured is a peremtory norm enjoying higher rank in international law. Art 2(2) – no exceptional circumstances such as war, threat of war, internal or political instability or other public emergency may justify torture. There is also an indivisible and inter-related obligation to prevent cruel, inhuman or degrading treatment (CIDT) when committed by or with the acquiescence of public official.

UNCAT definition of torture 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 official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. (art 1(1)).

UNCAT obligations The State obliged to take legislative, administrative and judicial measures to prevent torture. Other legal obligations: –not to refoul, return or expedite a person to another State where there are substantial grounds for believing the person may be in danger of being subjected to torture (Article 3); –to ensure that all acts of torture are criminal offences under criminal law and punished by appropriate penalties (Article 4); –to take measures to establish jurisdiction over offences referred to in Article 4 (Article 5); –taking a person suspected of torture into custody (Article 6); –to prosecute or extradite a person alleged to have committed torture (Article 7);

–to include acts of torture as an extraditable offence (Article 8); –for State parties to afford one another assistance in criminal proceedings for acts of torture (article 9); –to ensure that education and training is provided to law enforcement personnel(Article 10); –to systematically review interrogation rules and arrangements for the custody and detention of people under arrest, detention or imprisonment (Article 11); –to ensure that an individual who alleges they have been subjected to torture or other forms of ill-treatment have the right to complain to and have their case promptly examined by competent authorities (Article 13); –to provide in the legal system for redress, the right to fair compensation and full rehabilitation for torture survivors, as well as compensation for the family of deceased torture victims (Article 14); –to provide that statements made as a result of torture are not used in any proceedings except against a person accused of torture (Article 15); and –to prevent other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture (Article 16).

Combating of Torture bill Currently before the Minister of Justice & Constitutional Development. Contains a definition of torture. Seeks to put in place some of UNCAT requirements. Still is subject to discussion and debate.

Independent Police Investigative Directorate Bill (IPID) S 25(1)(a) of the Bill provides that the Directorate must investigate: – ‘any complaint of torture which is referred to it by a Station Commissioner, Magistrate, Judge, legal representative or the complainant in the case where the complainant is unrepresented.’ Concluding comments of CAT to SA in 2006: called for prompt, thorough and impartial investigation of all deaths in detention and allegations of torture and CIDT.

General comments on the IPID Bill Contains no definition of torture – therefore could adopt Combating of Torture (CoT) Bill defn or use UNCAT definition. Currently no criminal offence of torture, and no appropriate sanctions. IPID Bill should be developed in tandem with the CoT Bill to ensure all obligations and protections are dealt with.

The Bill provides for investigation of any complaint of torture. Is this meant to include torture committed outside of ambit of IPID? Could include torture committed by any public official. Reference to torture should include reference to CIDT in line with UNCAT obligations. Bill needs to outline objective or purpose of IPID and its powers, functions, structures and operation should be derived from this. Bill needs to specify the purpose of the investigations into torture. These could include: –Clarification of facts & acknowledgement of individual & state responsibility –Identification of measures to prevent recurrence –Facilitation of prosecution/disciplinary sanctions –Demonstration of need for reparation and redress from the State.

Prompt, impartial, effective and independent investigations Art 12 & 13 call for prompt and impartial investigations. Istanbul protocol: investigators must be independent of suspected perpetrators and agency they serve. GA Resolution A/RES/64/153 of 18 December 2009 ‘stresses that an independent, competent domestic authority must promptly, effectively and impartially examine all allegations of torture’ or other ill- treatment wherever there is reasonable grounds to believe that such an act has been committed. Confirmed by HRC in March 2010.

Not clear that investigation ito. Bill is sufficiently independent both functionally and institutionally: –Minister has very close relationship with IPID and Director. –Minister may appoint and dismiss Director on vaguely stipulated grounds and may be open to abuse. Not clear who should make recommendations to police. Bill does not strengthen position of ICD as there is no obligation on police to implement recommendations.

Bill needs to provide for ex officio investigations where there is grounds to believe torture or CIDT has been committed (Art 12 UNCAT). List of people who may refer complaint of torture needs to be open ended. Requirement for prompt and effective investigation should be incorporated in Bill. No formal reporting requirements should be needed to make a complaint. Victims/complainants should be able to be assisted by legal representatives and have access to any hearing and information on the investigation.

Comments on specific sections of Bill S 6(4) strengthen language to ensure that a finding of torture must be referred to NPA for prosecution. S 7: should provide for what should happen where person has criminal or disciplinary findings against them. S 22(6) what are consequences of failing to clear security clearance. S 22(2) should be a cumulative list of requirements for ED, and should require experience of the use of force and of persons deprived of their liberty. ‘lawful’ in S 24(1) should refer to both domestic and international law.

The meaning of S 25(2) is not clear. S 31: the Minister must make regulations relating to procedures of the IPID. Could infringe requirement of independence.

Prevention of Torture and CIDT The Bill does not deal with State’s obligations to prevent torture and CIDT. An important aspect of prevention is the regular monitoring and oversight over places of detention. SA is a signatory of OPCAT which requires independent and regular oversight over all places where people are deprived of their liberty. Over 1,000,000 people arrested annually. Little information on conditions of detention or custody. No regular reports of oversight visits by any independent body.

Optional Protocol to the Convention against Torture and other CIDT The OPCAT requires the establishment of one or more National Preventive Mechanisms (NPM) to: –Regularly examine the treatment of persons deprived of their liberty with view to strengthening their protection against torture and CIDT. –Make recommendations to relevant authorities –Submit proposals and observations concerning existing or draft legislation. IPID only talks of visits to police stations for purpose of conducting an investigation (S 24(2)(b)).

OPCAT: the NPM must be functionally independent, must have independent personnel. It is preferable to separate investigation of torture from regular oversight of places of detention. The Judicial Inspectorate of Correctional Services conducts monitoring and oversight over correctional centre. Prevention of torture and CIDT must be provided in legislation and practice. The Portfolio Committee needs to consider these obligations in terms of UNCAT and OPCAT ratification.

Thank you for the opportunity to present to the Portfolio Committee.