Global anti-torture movement alarmed over possible licence to torture

JOINT PRESS RELEASE

Global anti-torturemovement alarmed over possible licence to torture

Geneva-Dhaka, 27 March 2015 – the World Organization against Torture(OMCT) and Odhikar call on the government of Bangladesh to reject proposals toamend the country’s Torture and Custodial Death Prohibition and Prevention Act2013. The proposed amendments would have the effect of condoning systematicpractice of torture and immunizing from any responsibility.

In early March, the security services proposed to the Ministry of Homeaffairs to amend several sections in the Torture and Custodial DeathProhibition and Prevention Act 2013, which would defeat the very purpose of theAct and the Convention against Torture (CAT) that Bangladesh ratified in 1998.

Limit the definition of torture

According to the proposal, the Act would omit the country’s notorious Rapid Action Battalion, as well as the CriminalInvestigation Department, Special Branch and Detective Branch from thedefinition of ‘law enforcement agency’ excluding the very actors frequently allegedto resort to torture altogether from responsibility and prosecution under theAct.

Theproposal further suggests limiting the definition of torture to “acts oromissions which cause physical pain to any person for the purpose of obtaininginformation or a confession”. The other purposes – punishment, intimidation,coercion and discrimination – as well as causing “mental pain” are proposed tobe repealed.

Thesetwo amendments are not compatible with Article 1 of the CAT which provides a comprehensivedefinition of torture binding upon all parties to the Convention against Torture.We cannot see any valid grounds for departing from those universal principals.

Weurge the authorities to strictly adhere to its original definition of tortureand keep mental pain as well as punishment, intimidation, coercion anddiscrimination as part of the definition of torture. In addition, Article 1 definesthe perpetrator as being “public officials or other person acting in anofficial capacity”. This includes any branch of the police and investigatingbody as well as the military. Consequently, the Rapid Action Battalion, theCriminal Investigation Department, the Special Branch and the Detective Branchneed to be included in the Torture and Custodial DeathProhibition and Prevention Act 2013.

“Wanting to exclude those forces with anotorious reputation for torture is similar to issuing a license to torture. Guaranteeingimpunity at a time when the country needs nothing more than a return to therule of law is deeply troubling”,said Gerald Staberock, Secretary General of the OMCT.

Cripplecomplaint and investigation procedures

Thepolice also proposed to amend the complaint and investigation procedure regulatedin section 7 of the Act. The proposal suggests that complaints should be lodgedbefore the police or a magistrate instead of a court. This would mean that apetition would need to be filed with the very entity that is accused oftorture.

Article12 of the CAT requires “impartial and independent investigations” into tortureallegations. According to the Committee against Torture, the authoritativeglobal body overseeing the implementation of the CAT, this means not to entrustinvestigations to persons who have close professional or personal contact tothe alleged perpetrators or have an interest in protecting an allegedperpetrator, but to mandate an external monitoring body. The complaints procedurethus needs to remain with the Court of Sessions Judge.

Justificationfor torture in the current political crisis

Inaddition, the proposal suggests to repeal section 12 of theAct, which provides that a “state of war, threat of war, internal politicalinstability, public emergency; or an order of a superior officer or a publicauthority” shall not be an excuse for torture.

Section 12 of the Torture and Custodial Death Prohibition and PreventionAct 2013 is in compliance with Article 2 paragraphs 2 and 3 of the CAT,providing that the prohibition of torture is both absolute and non-derogable.This means that nothing can justify torture under any circumstances includingwar, emergency, or superior orders.

Licence to torture

The proposal to amend the Act comes amidst political violence that hadintensified over the past two months. Reports of arbitrary detention,extrajudicial killing, torture and other ill-treatment by law enforcementauthorities have rapidly increased since the latest confrontation between supporters of the government and the opposition.

The severe limitations are not only contrary to the very object andpurpose of the Act and the CAT, but strongly suggest that torture has long beenan integral and systematic practice of law enforcement. The adoption of theproposed changes would effectively immunize the authorities from accountability,which amidst serious allegations of torture, cannot but be understood as condoningthe practice of torture in times of crisis.

“In order to put a halt to the culture of impunityprevailing in Bangladesh, the government should ensure that all allegations oftorture are investigated independently and that all the perpetrators arebrought to justice” said Adilur Rahman Khan,Secretary of Odhikar.

We strongly urge the government of Bangladesh to reject the suggested changesand ensure the absolute prohibition of torture.

For further information please contact:

Odhikar, ASM Nasiruddin Elan, Director, Email: odhikar.bd@gmail.com OMCT,Nicole Buerli, Human Rights Advisor, Tel. +41 (0) 22 809 49 26, Email:nb@omct.org