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
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 1
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
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 2
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
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 3
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.
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 4
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
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EuroAsia MUN 2014 Training and Development Conference Page 5
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.
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Enhancing Standards and Ensuring Human Rights for People Under Police Custody and Detention
EuroAsia MUN 2014 Training and Development Conference Page 6
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;
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EuroAsia MUN 2014 Training and Development Conference Page 7
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
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EuroAsia MUN 2014 Training and Development Conference Page 8
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
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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
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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
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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
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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
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
“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
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In some cases police brutality involves
sexual harassment and rape. Especially
female arrestees are threatened sexually.lvi
Some countries did not ratify the
Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment
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,
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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
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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
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 16
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
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 17
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
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 18
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
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 19
power by state officials, adopted
internationally but easily
applicable on national levels
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 20
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EuroAsia MUN 2014 Training and Development Conference Page 24
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EuroAsia MUN 2014 Training and Development Conference Page 25
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lxxviii ibid
lxxix Body of Principles for the Protection
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Detention or Imprisonment Adopted by
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Enhancing Standards and Ensuring Human Rights for People Under Police Custody and Detention
EuroAsia MUN 2014 Training and Development Conference Page 26
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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 27
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