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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

EuroAsia MUN 2014 Training and Development Conference Page 0

EuroAsia MUN Training and Development Conference

6-8 December, 2013

ANKARA

FOOD AND AGRICULTURE ORGANIZATION

OF THE UNITED NATIONS

STUDY GUIDE




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 9th

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

mailto:[email protected]




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 Under-

Secretary-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

mailto:[email protected]




INTRODUCTION TO THE THIRD COMMITTEE

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

to comprehend the problems and create

solutions for social development and

humanitarian crises. SOCHUM deals with

specific human rights, including women’s

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

human rights.

In order to create comprehensive solutions

Member States should identifies the

problems faced during custody and

detention first and then analyzes current

legal frameworks, both internationally and

domestically. It would be beneficial to

compare the international legal documents

with 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.

International community needs to

renounce its stand against violation of

custody rights with more practical and

enforceable measures.

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

Custody aims to bring the arrestee before

the court or to secure the administration of

the legal procedure.




Police detention is described as any form

of imprisonment in broad sense.

To elaborate more on detention, it can be

defined as legally removing of an

individual’s liberty by government

officials. As Criminal Law of United

Kingdom explains; "a person is in police

detention for the purposes of this Act if –

(a) he has been taken to a police station

after being arrested for an offence…

(b) he is arrested at a police station after

attending voluntarily at the station or

accompanying a constable to it.”ii

Legal reasons for a detention or arrest are

explained in the Article 5 of European

Convention on Human Rights as follows:

“a) the lawful detention of a person after

conviction by a competent court;

(b) the lawful arrest or detention of a

person for noncompliance with the lawful

order of a court or in order to secure the

fulfilment of any obligation prescribed by

law;

(c) the lawful arrest or detention of a

person effected for the purpose of bringing

him before the competent legal authority

on reasonable suspicion of having

committed an offence or when it is

reasonably considered necessary to

prevent his committing an offence or

fleeing after having done so;

(d) the detention of a minor by lawful

order for the purpose of educational

supervision or his lawful detention for the

purpose of bringing him before the

competent legal authority;

(e) the lawful detention of persons for the

prevention of the spreading of infectious

diseases, of persons of unsound mind,

alcoholics or drug addicts or vagrants;

(f) the lawful arrest or detention of a

person to prevent his effecting an

unauthorised entry into the country or of a

person against whom action is being taken

with a view to deportation or

extradition.”iii

B. Human Rights and International, Regional Instruments of Protection of Human Rights Before explaining special rights under

custody and detention, it would be

beneficial to analyze human rights concept

as general.

Human rights are protected de jure under

every circumstance.iv These are the rights

which are universal, meaning that people

have them regardless of their gender,

sexual orientation, race and criminal

record, religion or any other kind of

distinction.v The universality of human

rights is the concept which is the main

root of international human rights law. vi




According to Universal Declaration of

Human Rights (UDHR) States are obliged

to take positive action to protect human

rights of individuals. Also states have to

not interfere with the rights of the

individual which means state officials

should also take negative action.vii

One of the most significant texts behind

the development of the human rights law

is the Universal Declaration of Human

Rights. According to Article 1 of

Universal Declaration of Human Rights,

all people have these rights without any

discrimination and they receive the

entitled rights by being born and receive

them equally. In Article 2, UDHR states

that “Everyone is entitled to all the rights

and freedoms set forth in this Declaration,

without distinction of any kind, such as

race, colour, sex, language, religion,

political or other opinion, national or

social origin, property, birth or other

status. Furthermore, no distinction shall

be made on the basis of the political,

jurisdictional or international status of the

country or territory to which a person

belongs, whether it be independent, trust,

non-self-governing or under any other

limitation of sovereignty.”viii

This Article

explains that none of the states can

propose an excuse to not to perform

obligations regarding protection of human

rights. Other basic rights that are set forth

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

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

to equal protection of law (Article 7).ix

UNDH is accepted by many states and its

clauses are perceived as a general

standards, or customary law. As a

consequence, it is claimed that the

declaration creates a minimum of human

rights protection for every state and their

citizens.

It should be noted that any kind of

distinction is prohibited while exercising

the human rights. The list of prohibited

discriminatory criteria is not exhaustive so

a change in modern society or a new status

has to follow this general principle.x

International Covenants on Human Rights

are supportive and more specific another

important international instruments. These

covenants are namely International

Covenant on Economic, Social and

Cultural Rights and International

Covenant on Civil and Political Rights.

Each Covenant (ICESCR) states that

every individual has right to self -

determination.xi

a. Right to Life

Right to life is the most valuable and

primary human right: every person has it

and no one can breach it.




Article 7 of UDHR is as follows:

“Everyone has the right to life, liberty and

security of person.”xii

Additionally the 6th

Article of International Covenant on Civil

and Political Rights states that “Every

human being has the inherent right to life.

This right shall be protected by law. No

one shall be arbitrarily deprived of his

life.”xiii

In 1984 International Law experts

met to discuss the limitations and

derogations of ICCPR. According to

Siracusa Principles, governments cannot

derogate from several duties at any time,

one of them being the protection of

individual’s right to life.xiv

Right to life is

a non-derogable right. Protocol

Additional to the Geneva Convention of

12 August 1949, and relating to the

Protection of Victims of International

Armed Conflicts (Protocol I) states that

civilians’ right to life is totally protected

during an armed conflicted and they

cannot be subject of an attack. xv

Most of the time, there are vulnerable

groups, whose right to life is threatened so

there are some more specific international

legal instruments to protect their right to

life.xvi

These vulnerable groups, in most

of the cases, are children, refugees,

minorities. For example, in Article 33 of

Convention Relating the Status of

Refugees, it has been stated that

“Contracting State shall expel or return

("refouler") a refugee in any manner

whatsoever to the frontiers of territories

where his life or freedom would be

threatened on account of his race,

religion, nationality, membership of a

particular social group or political

opinion.”xvii

This Article means if a

refugees’ right to life is under threat in the

country of origin, the hosting country

cannot force him to go back to his own

country.xviii

In addition to the international legal

instruments there are several regional

instruments protecting right to life.

Council of Europe’s Convention for the

Protection of Human Rights and

Fundamental Freedoms as amended by

Protocol No.11 states that every human

has a right to life and the domestic law of

the State Parties should also protect this

right. In Article 2 it also says:

“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:

in defence of any person from unlawful

violence;

in order to effect a lawful arrest or to

prevent the escape of a person lawfully

detained;




in action lawfully taken for the purpose of

quelling a riot or insurrection.”xix

African Union’s Charter on Human and

People’s Right is the main legal

instrument that protects right to life in

African Union Countries. (Article 4)xx

b. Bodily Integrity

Physical integrity (bodily integrity) is

another important human right. Bodily

integrity means respecting the unity of an

individual’s body. The protection of

bodily integrity prohibits medical

intervention without patient’s consent,

rape, forced abortion, beating, and forced

amputation, unwanted pregnancy, and it is

complemented by prohibitions against

domestic violence, prohibition of slavery

and forced labor, right to life, prohibition

of torture and inhuman treatments.xxi

c. 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

law.”’xxii

This Article explains that in

order to take an individual under arrest or

detention, officials have to follow legal

rules and procedures. Otherwise arrest or

detention would be accepted as a breach

of the right of liberty.xxiii

As European

Convention on Human Rights Article 5

explains, in order to call a detention legal,

a competent court should convict the

detention.xxiv

Domestic laws should

determine the framework for legal

procedure of arrest or detention for

transparency and lawfulness. Law should

openly state the reasons and conditions for

that necessitate arrest or detention because

these enforcements would disrupt the

liberty of a person. So the officials should

not be able to find any gap or lack of

codification in the law and use it in order

to abuse their power and detain an

individual arbitrarily. Arbitrarily

detainment means holding an individual

without a judicial decision.xxv

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 police custody and




detention on an international level.

However it must be noted that conventions

on human rights also protect the rights of

the people under custody or detention,

even if they do no not have any special

provision regarding the circumstance. This

is due to the fact that ill-treatment or

arbitrary detention contradicts a minimum

standard of human rights provided in

many international instruments. For

example even if a country’s regulation on

custody does not include provisions on

torture, according to international law

police officers still cannot torture due to

basic human rights provided to the

individual through international

documents.

In order to go in depth of the topic, a

distinction must be made between an

arrestee and a convicted person. An

arrestee is a person who is under arrest for

investigation or in order to put in front of

court. On the other hand convicted person

is found criminally guilty by the decision

of court.

ICCPR Article 10 says; “1. All persons

deprived of their liberty shall be treated

with humanity and with respect for the

inherent dignity of the human person.

2. (a) Accused persons shall, save in

exceptional circumstances, be segregated

from convicted persons and shall be

subject to separate treatment appropriate

to their status as unconvicted persons; (b)

Accused juvenile persons shall be

separated from adults and brought as

speedily as possible for adjudication.”xxvi

As ICCPR declares in the first paragraph

of Article 10, officers have to protect

human rights of arrestees and detained

people. Also conditions during arrest and

detention have to protect the physical and

mental status of the individual. An

arrestee cannot stay with convicted

people, since there is the individual is yet

to be convicted and should not be treated

and seen as a convicted person. Underage

accused people are protected in special

conditions. Due to psychiatric and

pedagogical reasons, they should not stay

with adults when under arrest.xxvii

Officers

who are dealing with juvenile or child

arrestee should be trained especially for

the job and they should be very careful

with their language and behavior around

the underage arresteexxviii

because post-

arrest affects can be seen for long periods

of time. For example, it is documented

that juvenile arrestees drop out of school

in the early age.xxix

a. Prohibition of Torture

Prohibition of torture is a significant legal

concept when examining the human rights

violations under police custody and




detention since it constitutes a violation to

physical integrity and life. Integrity of

body is one of the main legal interests

protected by international human rights

law protecting the inviolability of

individual’s physical body and activities

such as torture violate bodily integrity.

Article 5 of the UNDHR and Article 3 of

European Convention on Human Rights

says “No one shall be subjected to torture

or cruel, inhuman or degrading treatment

or punishment.”xxx

Convention against Torture and Other

Cruel, Inhuman or Degrading Treatment

or Punishment is one of the main legal

instruments regarding the human rights.

This convention defines 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 an

official capacity. It does not include pain

or suffering arising only from, inherent in

or incidental to lawful sanctions.”xxxi

This

convention is important because it openly

states that there could not be any reason,

which justifies the torture. This

convention also forces states to accept this

prohibition in national legal frameworks

too. In the Article 10 of the ICCPR;

“Each State Party shall ensure that

education and information regarding the

prohibition against torture are fully

included in the training of law

enforcement personnel, civil or military,

medical personnel, public officials and

other persons who may be involved in the

custody, interrogation or treatment of any

individual subjected to any form of arrest,

detention or imprisonment.”xxxii

According

to this Article, governments are

responsible to train and supervise police

officers to make sure rights of the

individuals are protected under custody,

detention or during interrogation.

Governments have to ensure every single

person who involves to custody process

has necessary information and

education.xxxiii

Children are accepted as a vulnerable

group so there has to be more protection

over them by law. Article 37 of

Convention on the Rights of Children

states that: “No child shall be subjected to




torture or other cruel, inhuman or

degrading treatment or punishment.

Neither capital punishment nor life

imprisonment without possibility of

release shall be imposed for offences

committed by persons below eighteen

years of age.”xxxiv

Capital punishment -also known as the

death penalty- is when a person is put to

death as a punishment by state. Capital

punishment against the underage is also

prohibited by the ICCPR article 6. The

right to life of children is protected in the

most possible highest standards.

On occasions, when a person is under

police custody or a detention for a

political reason, the officers can regard

him/her as a threat against the state so this

increases the chance of exposure to harm

of the physical integrity of the arrestee.xxxv

In order to prevent this, International

Covenant on Civil and Political Rights can

be applicable in these cases. In the Article

7, the Covenant states that no one can be

tortured because of their political

ideologiesxxxvi

.

United Nations Congress on the

Prevention of Crime and the Treatment of

Offenders adopted convention for

Standard Minimum Rules for the

Treatment of Prisoners in 1995. Even

though people under police custody or

detention are not necessarily named as

prisoners, unless they were not legally

committed to prison as a punishment for

criminal offense of while awaiting trial,

these regulations should be applicable

too.xxxvii

This Convention states that the

prisoners should have good life standards

such as providing them a clean drinking

water, proper food, physical activities and

open air time.xxxviii

These are basic

material and psychological needs of every

human being; consequently the

governments have to satisfy these needs

without asserting any excuse under the

Standard Minimum Rules for the

Treatment of Prisoners.

In national legal frameworks there are

several examples of regulation of police

custody and detention. One of the best

examples is the Police and the Criminal

Evidence Act 1948 in United Kingdom

and Northern Ireland. This Act regulates

the procedures of the officers during

custody and detention; additionally it

limits the power of the police then creates

a ‘checks and balances system’ to prevent

power abusesxxxix

. The legislation specifies

each power of the police and explains how

police can use its powers.

Another domestic legal framework

example is Turkish Police Power’s and




Duties Law explains what police officers

can do or cannot do during interrogation.

Also Turkish Penal Code deems torture as

a crime.xl

b. Due Process of Law

Due process of law is fairness and

transparency during all legal

proceedings.xli

According to Fifth

Amendment of US Constitution no one

can be deprived from liberty without the

due process of law.xlii

This concept

includes pre-trial phase (custody), trial

phase and post-trial phase (detention).

With the guarantee of due process of

law, government cannot arrest anyone

and hold them under custody arbitrarily.

State must respect all of the legal rights

of the individual.xliii

During custody and detention, people

still own legal rights and the violations

during these phases can be accepted as

due process of law violation.

D) Problems Regarding Violation of Human Rights Under Police Custody and Detention (Figure 1 Guantanamo Prison)

xliv

As it was explained above, during police

custody and detention, there are several

common human rights violations. The

most known ones are torture and damage




to physical integrity.xlv

Especially in order

to force arrestees to confess or obtain

information from them, there have been

reports from various countries that police

officers often use torture as a method.

Even though torture is the most common

violation, there are other important

concepts regarding the issue, both are

given in detail below.xlvi

I. Police Brutality and

Torture


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

“disciplining” the suspected person to

“obey the order” and become “a loyal

citizen”.li

Torture can be conducted by causing

severe harm on body of the accused.

Examples are; electrical shocking,

beating to death, rape, assault,

permanent damage to sexual organs,

burning, dental damage, starvation,

forced body positions.lii

Mental torture

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. Corporal

punishment became internationally

illegal however still there are thirty-

three 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




In some cases police brutality involves

sexual harassment and rape. Especially

female arrestees are threatened sexually.lvi

Some countries did not ratify the



or Punishment. For example India signed

the convention but did not ratify it so it is

not in force for India. Additionally, India

does not have any special offense for

torture but it is mentioned in the Penal

Code however the offense attracts no

particular relevance if the crime is

committed by a police officer.lvii

It is also

reported that Indian officers accept torture

as a regular method for investigation

during arrest.lviii

Last July a 16 years old

boy died after being beaten by officers all

night long.lix

"India has the highest

number of cases of police torture and

custodial deaths among the world's

democracies and the weakest law against

torture" said Ravi Nair, who heads the

South Asia Human Rights Documentation

Center. lx

Another example can be Guantanamo Bay

Prison, which belongs to the United States

and is located in Cuba. The prison is

known to have a reputation for constant

cases of torture. More than 100 prisoners

did a hunger strike in order to protest the

conditions in the prison.lxi

Other reports

state that the officers use various methods

for torturing the prisoners, some causing

serious psychological devastation and

problems. For example, isolating detainees

for long periods of time (3 months and

more) in a room always lit with florescent

light. After isolation many detainees

showed physiological disorders such as

talking with non-existing people.lxii

It was

also reported that during interrogations

officers use very loud music in order to

distract the detainees.lxiii

In China, it is reported that in some cases,

detainees are used in order to torture other

detainees. According to some sources, if a

detainee beats another one, he receives

reducing of imprisonment time.lxiv

Other

types of torture in prisons of China are

several forced body positions. For

example detainees are forced to stand

outside in very cold weather.lxv

Sometimes

arrestees are tied to wall or to the heater

core.lxvi

Other reports claim that in Russia, prison

conditions are not livable. For example a

Chechen woman who stayed in Russian

prison for 8 years stated that there was no

hot water or usable toilets.lxvii

She claims

that she was beaten by the officers.lxviii

All the examples given above are small

indications of a bigger problem which

should not be linked to specific countries,




but should be comprehended as

worldwide. A study conducted by

Amnesty International shows that in many

countries, citizens believe that, in the case

when they are taken into custody, they

will be tortured.

(Figure 2: Survey Conducted by

Amnesty International on May,

2014)lxix




II. Death In Custody

Custodial deaths are occurring in

different parts of the world. This may

be a consequence of torture, ill-

treatment or uninhabitable facilities.

Death under custody means either

officers violated the bodily integrity and

consequently, violated the right to life

of the person under custody or the state

failed to provide the minimum

standards for survival in the detainment

facilities. It should be mentioned that,

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

federal law enforcement operation); or (2)

is en route to be incarcerated or detained,

or is incarcerated or detained, at any

federal correctional facility or federal

pretrial detention facility located within

the United States or any other facility

pursuant to a contract with or used by

such agency.’’lxxi

This act is important because it creates

supervision over the officers. With the

data government can perform a detailed

analysis on custodial deaths.

For example in India, in 5 years, there

have been 11820 custodial deaths.lxxii

Reports show that these deaths are caused

by different circumstances. Some are

reported as suicide, killed by other

detainees, natural causes, and

malnutrition.lxxiii

Figure 3: File photo of Chinese prisoners having

lunch at a jail in Beijing.lxxiv

III. Denial of Access to Counsel

During the legal proceedings every

suspected has a right to access a legal

counsel or a lawyer. If an arrestee cannot

afford a lawyer, the government has to

provide a legal counselor to him/her. For




example, in Canada, the right to counsel is

guaranteed with section 10 of Canadian

Charter of Rights and Freedoms upon.lxxv

Also in France, Code of Criminal

Instruction guarantees right to counsel.

Many states which inspired from France

criminal code have similar provisions. At

the beginning of the arrest, individual has

to be informed promptly and in a language

he/she can understands the reasons of

his/her arrest according to ECHR Article

3.lxxvi

The arrestee has to be brought in

front of a competent court and fair judge

as soon as possible.

According to the International Covenant

on Civil and Political Rights (ICCPR)

right to counsel in legal proceedings, as

well as the right “to have adequate time

and facilities for the preparation of…

[one’s] defense and to communicate with

counsel of his own choosing.”lxxvii

Access to counsel is a due process of law

and if officers are not respecting this right,

they are breaching an important regulation

of custody. The officers have to remind

the rights to arrestee immediately.

In addition, access to a lawyer is not

enough to satisfy the necessities of

regulation; the environment has to be

proper for legal consultancy. If a person is

unable to speak the same language with

the officers, they are guaranteed a right to

have an interpreter.lxxviii

'’The U.N. Body

of Principles for the Protection of All

Persons under any Form of Detention or

Imprisonment (Body of Principles on

Detention) states “[a] person who does

not adequately understand or speak the

language used by the authorities

responsible for his arrest…is entitled to

have the assistance, free of charge, if

necessary, of an interpreter in connection

with legal proceedings subsequent to his

arrest.”lxxix

The access to a legal counselor is

especially important for the people under

age of 18 because they are unable to

defend themselves or find a lawyer for

themselves. As a result, government

officials have to conclude their duty fully

and provide a legal assistance as stated in

the Article 37 of Convention on the Rights

of Children, ‘’Every child deprived of his

or her liberty shall have the right to

prompt access to legal and other

appropriate assistance, as well as the

right to challenge the legality of the

deprivation of his or her liberty before a

court or other competent, independent and

impartial authority, and to a prompt

decision on any such action.’’lxxx

After the proper legal counsel is provided,

the principle of habeas corpus should be

executed. Habeas Corpus is one of the




most important rights each individual has

and indicated that everybody has a right to

fair trial. According to this principle

officers cannot hold an arrestee for an

unlimited time. After a reasonable time

arrestee has to be released or be put in

front of a court for a fair trial. For

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

an Afghan national, who had been taken

into custody in the US, in December

2008.H was kept in custody for 5 years 6

months without any charge or trial. He

wrote a petition to the US District Court

stating that his right to a fair trial is not

satisfied however the judge decided court

has no jurisdiction on the case. lxxxi

IV. Incommunicado Detention

Incommunicado detention is denied

access of family, relatives, attorney and

physicians during detention.lxxxii

United

Nations repeatedly states that

incommunicado detention itself

constitutes a degrading and inhuman

act.lxxxiii

Some countries have legalized

incommunicado detention in their fight

with terrorism. For example in United

Kingdom, according to Terrorism Act

2000 forty-eight hours of

incommunicado detention is allowed.

Australian Security Intelligence

Organization allows incommunicado

detention up to seven dayslxxxiv

.

Incommunicado detention can become a

form of torture especially for the people

who require medical assistance.lxxxv

For

example, in Uzbekistan, there were

reports of cases where prisoners on

politically motivated charges were not

allowed to have medical examination

and reach to their medical reports.lxxxvi

Also their families were not informed

about their medical situation.lxxxvii

The

general recommendations of the UN

Special Rapporteur on Torture similarly

state: ‘’Torture is most frequently

practiced during incommunicado

detention. Incommunicado detention

should be made illegal, and persons

held incommunicado should be released

without delay.’lxxxviii

’

Unannounced detention is one step further

than incommunicado detention. In

addition to holding the arrestee without

letting him/her to contact anyone, the

officers do not inform family or relatives

of the arrestee about the custodylxxxix

.

Because no one is aware of the detention,

it is impossible to observe the behavior of

the officers and interfere in any form of

violation of human rights.

‘’Every child deprived of liberty shall be

treated with humanity and respect for the




inherent dignity of the human person, and

in a manner which takes into account the

needs of persons of his or her age. In

particular, every child deprived of liberty

shall be separated from adults unless it is

considered in the child's best interest not

to do so and shall have the right to

maintain contact with his or her family

through correspondence and visits, save in

exceptional circumstances’’xc

According to the aforementioned

international law documents, any state

practicing or tolerating officers, who are

practicing unannounced, secret or

incommunicado detention, are violating

several human rights.

E) Conclusion In conclusion, around the world, there

are individuals facing with severe and

degrading treatments under custody and

detention including torture, death, and

prevention of access to the necessary

medical or legal assistance. Even with

international legal instruments

governments are failing to satisfy the

necessities of human rights. . The norms

set forth by the international

instruments are not incorporated to

national law systems, therefore ignored

by some. How to create better

international cooperation in order to

influence domestic law systems

F) Points a Resolution Should Cover

Analysis of the most common

human rights violations under

custody and detention

Means to Enhance the

practicability of the existing law

by agreeing on common

measures

Creation of concrete and unified

regulations and rules for officers

working in detention facilities

Revision of the existing

standards for detention facilities

and creating international

cooperation for worldwide

enhancement of such facilities

Methods to ensure the

individual’s right to access a fair

trial and legal counsel in

worldwide detention procedures

Re-statement of the principles

behind prevention against

torture, and creation of methods

to eliminate torture as a method

for getting intelligence or a

method of punishment

Means to supervise the custodial

processes and prevent abuse of




power by state officials, adopted

internationally but easily

applicable on national levels




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