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On 17th December 1984,
during the XXXIX ordinary period of sessions of the
General Assembly of the United Nations, the
Convention against Torture and Other Cruel, Inhuman
and Degrading Treatment and Punishments was
approved. Recently, this Convention came into force
internationally when the requirements established
in Article 27 were fulfilled.
Our country signed it this
23 September, with the reservations that will be
mentioned hereinafter.
There is no doubt that the
aforementioned Convention constitutes one more step
on the road towards the humanisation of
international law, as well as a means of promoting
a more effective protection of the rights which are
guaranteed in various multilateral instruments.
Indeed, in the Universal Declaration on Human
Rights of 1948, as well as in the International
Covenant on Civil and Political Rights of 1966,
torture and other cruel, inhuman or degrading
treatments or punishments are
prohibited.
From the point of view of
principles, the Convention certainly constitutes an
achievement in the eradication of the practice of
torture, as was previously the case with slavery,
with the crime of white slavery,
etc.
The next paragraphs
examine the most relevant provisions of the
Convention's text.
In the first place,
article 1 establishes a definition of torture
within the framework of the Convention, that is,
any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a
person for such purpose 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 solely arising from lawful
sanctions, or inherent or incidental to
them.
Article 2, paragraph two,
prescribes that in no case exceptional
circumstances, such as a state of war or threat of
war, internal political instability of any other
public emergency, should be invoked as a
justification for torture.
The above-mentioned text
is perfectly consistent with article 4, paragraph
two of the International Covenant on Civil and
Political Rights of 1966, of which Chile is a
party. Indeed, this provision states that one of
the rights that shall not be suspended or
derogated, in any circumstance, is the right not to
be submitted to torture, punishments or cruel or
inhuman treatment.
The third paragraph of
Article 2 prescribes that superior orders from an
official or public authority may not be invoked as
justifying torture. This provision is consistent,
for example, with the provisions of article 330 of
the Military Justice Code.
Articles 5, 6 and 7 are
designed to establish a system of universal
jurisdiction in relation to the offence that is
described in the Convention. This system attempts
to prevent impunity of the authors of the
above-mentioned illicit conduct. Accordingly, all
State Parties are bound to prosecute the alleged
offenders or, otherwise, to extradite them. This
mechanism is one of the essential elements for the
full efficacy of the Convention.
This system of universal
jurisdiction is also contained in a number of other
international Conventions to which Chile is a
party. For example, mention can be made of the
"Agreement on Offences and Certain Other Acts
Committed On Board Aircraft" (Tokyo, 1963); the
"Agreement for the Suppression of Unlawful Seizure
of Aircraft" (The Hague, 1970); the Convention for
the Suppression of Unlawful Acts against the Safety
of Civil Aviation (Montreal , 1971); International
Convention against the Taking of Hostages (New
York, 1979).
In Articles 10 and 11, the
States agree to provide a thorough education in and
information about the prohibition of torture in the
professional training of the officials charged with
implementing the law, whether civil or military,
and of the medical staff and other public officials
and other people that could be involved in the
custody, interrogation and treatment of any person
under arrest, or detention or
imprisonment.
At the same time, every
State Party will keep under systematic scrutiny the
norms and instructions, methods and practices of
interrogation, as well as the provisions regarding
custody and the treatment of persons under any form
of arrest, detention or imprisonment in any
territory under its jurisdiction in order to
prevent all cases of torture.
Articles 17 to 22 contain
provisions regarding the application of the
Convention. As is the case with other international
texts to which our country is a signatory
(International Covenant on Civil and Political
Rights and the Convention on the Elimination of all
Forms of Racial Discrimination), the Convention in
question creates an organ with international
powers, the Committee against
Torture.
A characteristic of this
Committee against Torture is that its actions are
confidential and they have to be conducted with the
assistance of the State concerned.
The Reports which have to
be submitted by the States Parties (one during the
year which follows the coming into force of the
Convention for each State, and from that date
onwards, one every four years with regard to any
newly adopted provisions, as well as Reports
requested by the Committee itself) are examined by
the Committee which can make the commentaries which
it considers appropriate and transmit them to the
State concerned, which may formulate its
observations.
Finally, the Committee can
include its commentaries as well as its
observations in its Annual Report.
The confidential nature of
the Committee's actions and the fact that it
requires the co-operation of the State Party in all
its actions, is evidenced and provided for in the
fact-finding procedure established in the
Convention.
In Article 30 a dispute
settlement procedure is established, prescribing
that the disputes that may arise in relation to the
interpretation and application of the Convention
between two or more Parties, which could not be
settled through negotiation, will be submitted for
arbitration at the request of one of
them.
The same provision states
that if in the period of six months from the date
of the presentation of the request the Parties are
unable to reach an agreement on the form of the
arbitration, any of the Parties could submit the
controversy to the International Court of
Justice.
The next paragraphs of
this Technical Report deal with the reservations
that Chile made at the time of signature. The final
paragraphs reads as follows:
In view of the fact that
the provisions contained in the Convention are, to
a great extent already contained in our domestic
legal system as well as in international
instruments to which Chile is a Party, there seems
to be no legal problem for
ratification.
This will reaffirm the
position that our country has held before the
agencies of the United Nations which have powers in
the field of human rights and will be a factor that
will contribute to improve the international image
of the Government of Chile.
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