Letter from UN Commission on Human Rights to U.S. Ambassador Kevin Edward Moley re: Request for Information on Detainee Treatment and Legal Status

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2 July 2004
Eiceellency,

• We haVe the honour to address you in our capacities as Special Rappoiteur on the independence of
judges and lawyezr., Special Rapportenr on the right of everyone to the enjoyment of the 14hr-a attaina'bte
standard of physical and mental health and Special Rapporteur on torture, pursuant to -Commission on Human
Rights resolutions 2003/43, 2002/31 and 2001/62 respectively.

We should like to refer to Commission resolution 2003/32, which inter alias.
mi. Condemns all forms- of torture. and other cruel, inhuman or degrading treatment -or punishment, Which are and than remain prohibited at any time and in any place whatsoever and can thusnever be justified, and calls upon all. Governments to implement fully the prohibition of tornire and other cruel, inhutnan or degrading treatment or punishnient; •
at
"8. Stresses iri particulai that all allegations of torture or other -cruel, inhuman or degrading
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treatment or punishment should 'be promptly and impartially examined by the competent national authority, that those who encourage; order,_ tolerate or•perpetrate acts oftorture must be heldresponsible and severely punished, ineltiding the officials in -charge of the place -of detention Where-the prohibited .
•act ie found to have taken place, notes in this respect the hinciples on the Effective investigation and Documentation of Torture and Other Qua Inhuman or Degrading Treaimeni or • Punishment (the Istanbul Principles) annexed to Corn Mission resolution 2000/43 of 20 April 2000. and General Assembly resolution 55/89 of 4 December 2000 as .a useful tool in efforts to combat torture, apd-rciteratcs its request to the Special Rapporteur, in the normal course ofhis work, to solicit view: froth, Governments. and non-governmental organizationa;
"14. Reminds . all States that prolonged incommunicado detention may facilitate the perpetration. uftoinue and can bi itself constitute a form of cruel, inhurnan or degrading treatment or even torture, and urges all States to revect the safeguards concerning the liberty,, security and the dignity of the person...".
UNITED STATES DEPARTMENT OF STATE
His Ekeelleriey
REVIEW AUTHORITY: WILLIAM J GEHRON
Mi. Kevin E. MtdcY •
DATE/CASE ID: 01 DEC 2004 200303827
Permanent Representative oldie United States of America
To the United Nations Office at Geneva , 11 Route de Prepay
1292 Chambety
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We also refer your Government to the Basic Principles on the Independence of the Judiciary, adopted by the Seventh United Nations Congress on the Prevention ofCrime and the Treatnient of Offenders aad endorsed' by the General Assembly in its resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985. :paragraph 5 of which emote that "[Ejvarkona shall have the right to be tried by ordinary courts Or trannuds
using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts orjudicial tribunals."
We further refer your Government to the Basic principles on the Role of Lawyers., adopted by the--
-United Nations Congress on the Prevention of Crime and the Treatment of Offenders,. paragraph 8 of Eighth which states that arrested, detained or imprisoned.perstint shall bcprovided with adequate opportunities, lime bud.f.a .-
ilitiezi to.ber.isitc.d by watt W evnenuantaate and'‘.4.nngult,with as lawyer, wit outdelay, Intertteptionur . censorship and in full confidentiality_ Such consultations may be within sight, but not within the hearing, oflaw
. enforcement officials."
It will be recalled in this regard that in paragraph 9 ofits resolution 2003/39 the commission on Heiman Rights.upon States that have military courts for trying criminal offenders to ensure that such courts -are • an integral part ofthe generaljudicial systcm . and use the duly established legal proceedings}"
We further refer your Governmcnr -to resolution 2003/28, in Which the Commission:
73. Calls Upon States to guarantee that .the light ofeverYone to the enjoyment of the highest attainable
standard ofphysical and mental health will be exercised without discrimination of any kind; [and•
.. ...

5. Calls upon States to 'Pay special attention to the situation ofvulnerable groups, including by th e
adoption ofpositive Measures, in order to safeguard the full realization ofthe right of everyone to the

•enjoyment ofthe highest attainable standard ofphysical and mental health."'
-.In resolution 2002/84 entitled "Human rights and thematic procedures", the Commission.
. "2. Encorouses all Gcrvcriuncnts to cooperate with the Commission through trio pertinent tliernarie procedures by
• "(a). Responding without undue delay to• requests for information made to them -through. the thematic • procedures, so -that the procedures may carry out their mandates effectiVelY; • .•
•- •
Calls upon the Governments concerned to study carefully. the recommendations addressed to them under thematic procedures . and to keep the relevant -mechanisms informed without undue -delay on the progress . tirade towards their implementation..."
In this connection, we should like to bring to your GOvernment's. attention allegations we have-recently received relating to your country; a summary of Which you will find in the annex to this letter. 'Stressing that -we do not make any determination on the facts and circumstances of these-allegationi, we would request your.cooperation in clarifying their substance. In order to do so, information CODC-Cratittg the following matters would be ustAil: • •
•• Are the facts alleged in. the summary of the -case accurate? If not, please provide details of the inquiries -carried out to refine these .alitgations. •
• • Have the actions or omissions complained of now ended or in fact continue to be imposed and; if so, why is
such-the case?

• Has a Compliint, formal or informal, hien made on hehalf ofthe-victim? If so, who made the -complaint iand
What is their relation to the victim? To whom was the complaint made? What action was Undertaken upon
receipt ofthc complaint and by whom?

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Which is the authority revousible fur investigating the allegations? Which is the 'authority responsible for
-prosecuting the perpetrators? .•

•
Are any inquiries, judicial or other procedures in connection with the case under way? Ifs°, please provide

details . of their prop= to date, and. the timetable envisaged for their conclusion. If such inepiirics or procedures have bee% completed, please provide details ofthe conclusions reached. (Please attach copies of any relevant documents). Are these conclusions definitive?

•
Have penal or disciplinary sanctions been imposed on the alleged perpetrators? ifso, please provide details
Of the procedures followed to ascertain the penal or disciplinary responsibility of the perpetrators•before
imposing such penalties. Ifno such sanctions have been irnposed, why not?

•
Ifno inquiries have been undertaken, why not? Ifthe inquiries. which were undertaken were inconclusive,
why so?

-Has any compensation been provided to the victim or his/her family? Ifs°, please provide details including
the type and the amount ofthe compensation involved. Ifno compensation hat been provided, why.not? •

Was a medical examination conducted? Ifsb, by whom? What are the results of themedical examination?
Is the identity of the person or persons, group or unit responsible for the torture known? Is the identity of any military, police, paramilitary, civil defence Or similar body, or armed group not :under- government .Control, to -which those responsible belong known? •
¦ Please provide such other information orobservations concerning the present case as you consider relevant,
In addition, we would urge your Government to take any steps that might be necessary to irtvectiiate,, prOseente and impose appropriate sanctions on any persons guilty of the alleged violations; and to provide .an adequate remedy for th. e victim: We also request your GoVernment to adopt effective measures to prevent the recurrence of such acts.
•it would ha greatly appreciated, if your Govetruneuec reply couldbe cant to the Office of the United Natiops High Commissioner for Human Rights by 2 September 2004..
Please accept, Excellency, the assurances of our highest consideration_
co van Boven Special Rapporteur On the question oftOrture
- • t
Leandro Despouy
Special Ra teur on the independence ofjuclges and lawyers

Paul Hunt

• Special Rapporteur on the right of everyone to the enjoyment ofthe high est attainable standard ofphysical and mental health •
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