Criminal Justice (United Nations Convention Against Torture) Bill, 1998: Report Stage.
Before we commence, I remind Senators that they may speak only once on each amendment on Report Stage, except for the proposer who may reply to the discussion on the amendment. However, there will be a proposal to recommit amendment No. 3 and, if agreed, there will be no restriction on the debate on that amendment. I will deal with that matter when we reach amendment No. 3. Furthermore, on Report Stage each amendment must be seconded.
Amendments Nos. 1, 2, 5 to 11, inclusive, and 16 to 22, inclusive, are related and may be discussed together by agreement.
I move amendment No. 1:
In page 3, between lines 21 and 22, to insert the following:
"‘the Convention' means the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment adopted by resolution of the General Assembly of the United Nations on 10 December, 1984, the text in the English language of which is set out for convenience of reference in the Schedule to this Act.".
The amendment is a definition of "convention" and a similar one is incorporated by the Minister of State in amendment No. 2. It seems the Minister of State has by and large taken on board the issues we raised on Committee Stage. Perhaps he might give an outline of his briefing on the combination of these amendments and how he has taken on board our original proposal.
Does anyone else wish to speak? The amendment must be seconded.
I am aware of the worthwhile discussion in the House on the Bill on Committee Stage. Members will be aware that the Minister of State, Deputy Mary Wallace, undertook to consider a number of matters raised then, especially those relating to amendments tabled by the Labour Senators. It will be clear from the Government amendments tabled that, while we have not been in a position to take on board all the points made, we have gone a long way towards that. I am sure the House accepts the Bill is substantially improved as a result.
Government amendments Nos. 2 and 22 meet the points raised in amendments Nos. 1 and 21 in that they allow for the text of the convention to be incorporated into the Bill. This is obviously useful and the Minister of State undertook to respond to similar amendments tabled on Committee Stage by Senator Ryan by asking the parliamentary draftsman to devise appropriate amendments for Report Stage. There is no difference of substance between the Government amendments and those tabled by Senator Ryan and others. All that is at issue are slight matters of drafting. In the circumstances, I ask Senator Costello to withdraw Senator Ryan's amendments in favour of the official ones.
In making this change, the draftsman took the opportunity to make some other changes of an essentially drafting nature to recast the definition section of the Bill. This involves moving the definition of torture from the body of the Bill into the definition section. The only change of substance which has been made is that the phrase "for such purposes as" has been included in the definition of torture. This arises from a discussion on Committee Stage and this change in the definition is sought by the Labour Party Senators in amendment No. 6. Amendment No. 5 is consequential on amendment No. 2.
The opportunity is also being taken in the new definition section to define "Minister" as the Minister for Justice, Equality and Law Reform and amendment No. 18 is consequential to this. For drafting reasons, the definition section now defines the offence of torture. This involves no change of substance and amendments Nos. 9, 10 and 11 are consequential to this and the moving of the definition of torture itself. Amendments Nos. 7 and 8 in the name of the Labour Party Senators are related to those amendments because they seek to change the definition of torture. I regret it has not proved possible to accept those amendments.
Amendment No. 7 seeks to include as part of the definition of torture any act contrary to Article 3 of the European Convention on Human Rights. This would include acts of inhuman or degrading treatment. The difficulty which remains with this is that the inclusion of this in the definition would offend against the principle of certainty in criminal law. In other words, people need to know that what they are doing constitutes an offence. There have been a series of judgments of the European Court where the question of what constitutes inhuman or degrading treatment has been considered.
It must be remembered that what is included in the human rights convention arises in the context of a binding agreement on states, not in establishing criminal culpability. In terms of criminal liability, the use of the phrase "inhuman or degrading treatment" would lack the certainty necessary in the context of formulating a criminal offence. Leaving aside the fact that including a definition that lacks certainty might be found to fall foul of the Constitution, there remains the fundamental point that, without further definition, a person would not be in a position to know with any certainty whether he is committing an offence of inhuman or degrading treatment. I assure the Senator that we have examined the point carefully since he raised it on Committee Stage but our strong advice is that including such a definition could jeopardise the section in its entirety and, accordingly, would not be desirable.
A similar difficulty arises with amendment No. 8. The effect of the amendment would be to make part of the definition of torture subject to Article 1(2) of the convention which states: "This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application." There is a technical problem about this because the definition of torture contained in the Bill is a stand-alone provision which does not refer to the convention. It would not be practical to include in that definition, as amendment No. 6 seeks to do, a reference to part of the article of the convention which, in turn, refers to another article that is not referred to in the Bill. In every other event the overriding difficulty with what is proposed is that the formula would again lack the precision necessary in the definition of a criminal offence and would give rise to the same type of difficulty that would arise with amendment No. 7.
On Committee Stage the Minister of State, Deputy Mary Wallace, gave an undertaking that the commencement provisions of the Bill would be looked at with a view to bringing forward a Government amendment on Report Stage which would bring most of the legislation into force as quickly as possible after enactment. Having consulted with the parliamentary draftsman, the Government has tabled amendments Nos. 17 and 20 which will bring the legislation, with the exception of section 10, into force immediately on enactment. If amendments Nos. 17 and 20 are agreed to, there is no need for amendments Nos. 16 and 19.
Section 10 deals with privileges and immunities in relation to the Committee Against Torture established under Article 17 of the convention, and the conciliation commission set up under Article 2(1) (e) of the convention. Senators will be aware that it would be necessary to ratify the convention before bringing this section into force. It is hoped that the convention will be ratified as quickly as possible. However, as there will inevitably be some delay between the enactment of the legislation and ratification of the convention, it is necessary to provide for a commencement order solely relating to this section.
I trust that the Government's amendments are to the Senators' satisfaction and thank them for raising this matter on Committee Stage. I ask Senator Costello to accept the Government's amendments which will bring most of the Bill into force earlier than envisaged by his amendments and to withdraw his amendments. The Government's amendments go a long way to meeting many of the concerns expressed on Committee Stage. I hope the House will accept that, where we are not in a position to accept amendments, this followed detailed consideration which concluded that there were no cogent reasons for doing so.
I thank the Minister of State for his comprehensive response to our amendments. I also thank him for agreeing to include the text of the convention in the Bill as it encapsulates our objective of providing a statutory basis for this legislation. It is good that we are doing so and the Minister of State's proposals regarding the commencement of the Bill meet our concerns. I am pleased that this matter has been dealt with comprehensively and I accept the Minister of State's comments.
Amendment, by leave, withdrawn.
Amendment No. 2 was discussed with amendment No. 1.
Government amendment No. 2:
In page 3, to delete lines 22 to 30, and substitute the following:
"‘the Convention' means the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment adopted by resolution 39/46 of the General Assembly of the United Nations on 10 December 1984, the text of which, in the English language, is, for convenience of reference, set out in the Schedule to this Act;
‘the Minister' means the Minister for Justice, Equality and Law Reform;
‘the offence of torture' shall be construed in accordance with section 2 of this Act;
‘public official' includes a person acting in an official capacity;
‘torture' means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person–
(a)for such purposes as–
(i) obtaining from that person, or from another person, information or confession,
(ii) punishing that person for an act which the person concerned or a third person has committed or is suspected of having committed, or
(iii) intimidating or coercing that person or a third person,
(b)for any reason that is based on any form of discrimination, but does not include any such act that arises solely from, or is inherent in or incidental to, lawful sanctions.".
Amendment agreed to.
Bill recommitted in respect of amendment No. 3.
Government amendment No. 3:
In page 4, line 5, to delete "referred to in subsection (1)".
Amendment agreed to.
I move amendment No. 4:
In page 4, between lines 8 and 9, to insert the following:
"(3) A person, other than a person referred to in subsection (1) or (2), who carries out an act of torture on another person, whether within or outside the State, shall be guilty of the offence of torture, but shall be liable to be prosecuted in the State if that person or the victim of the offence is an Irish national or if that person subsequently enters the State or if the offence was committed in or has any other substantial connection with the State.".
This amendment is not included in the list mentioned by the Minister of State. Perhaps he would respond to the amendment.
This matter has been carefully considered since a similar amendment was debated on Committee Stage. I do not dispute that there is validity in some of the arguments put forward in support of this amendment and this is not a clear-cut case. However, the conclusion reached after careful examination is that, on balance, the amendment should not be accepted.
Everyone accepts that the definition of torture contained in the Bill is sufficient to give effect to the UN convention. The definition in the Bill mirrors as closely as possible the definition in the convention and the purpose of the Bill is to give effect to the convention. I accept that the convention would not prevent the use in our legislation of a wider definition of torture than that contained in the convention, if considered desirable, once the definition of torture in our domestic law clearly covered the definition contained in the convention.
The key issue is whether an extension of the definition is desirable. Acts of torture are reprehensible no matter who they are committed by, but the convention deals with acts of torture by public officials, in other words, acts of torture committed by persons acting on behalf of the state. In doing so the convention specifically recognises the peculiarly evil nature of, in effect, state-sponsored torture. Our legislation reflects this by confining the offence of torture, in line with the convention, to acts of this nature. For all practical purposes, the amendment would extend the definition to acts committed by anyone. The Minister's view is that the balance of the argument lies with the criminal law specifically recognising the unique nature of acts of torture committed by agents of the state and to the extent that the definition in the way proposed by the amendment would dilute that argument.
The conclusion would be different if it were the case that acts of torture committed by persons other than public officials would not be subject to criminal law. The reality is that, in practice, acts that would amount to torture would constitute serious offences under existing criminal law, for example, assault. The Non-Fatal Offences Against the Person Act, 1997, updated our law in the area of non-fatal offences generally. It includes a wide range of offences for which very heavy penalties are prescribed. There is no question but that a person committing acts of torture here in the ordinary sense of the word, would be amenable to the criminal law.
Amendment No. 4 would make a difference in that is seeks to allow for the prosecution here of a person, other than a public official, who committed an act of torture anywhere in the world and who entered this jurisdiction. I am advised that to seek to confer such extraterritorial jurisdiction would raise complex issues of constitutional and international law. The normal procedure between states is that if a person enters one jurisdiction who is wanted in relation to an offence in another jurisdiction, the matter is dealt with by extradition. Exceptionally, some offences can be dealt with by putting a person on trial in one jurisdiction for an offence committed in another jurisdiction. This generally takes place against the background of international agreements and, in the present case, the giving of that extraterritorial jurisdiction concerning torture, as defined in the Bill, is underpinned by the existence of the UN Convention Against Torture. There would be no such underpinning in international law in relation to an offence of torture which is defined in a way that goes beyond the definition contained in the convention, as proposed by this amendment.
There is a general principle of international law established in what is known as the Lotus case by the Permanent Court of International Justice to the effect that every sovereign state has the power to legislate with extraterritorial effect in the sense that it may enact that acts or omissions done outside its borders are criminal offences which may be successfully prosecuted within its borders. This is subject to the condition that the offences in question bear upon the peace, order and good government of the legislating state. It is hard to see how this condition would be fulfilled as regards an act of torture committed on the other side of the world. As I indicated, there is no international agreement which would underpin such jurisdiction in the case of acts of torture which would come within the definition of torture included in the UN convention.
I have gone into this matter in some detail because there is validity in some of the Senator's comments in support of the amendment. However, because there are advantages in making unique the nature of torture carried out by people acting on behalf of the state and because there would not appear to be any clear basis in constitutional or international law to confer the type of extraterritorial jurisdiction which is at issue, I regret that I must oppose the amendment.
I take on board the Minister of State's comments and I think he is probably right. However, I wish to explore this issue a little further. The UN Convention against Torture applies only to torture carried out by states or state officials. All other categories of individuals are exempt or not covered by it but the Minister said they would be covered by national legislation. At present there much paramilitary activity, a large part of which is torture – intimidation, kneecapping, criminal gangs, vigilantism, etc. These are of an organised nature, although they have a private, individual aspect. The convention contains nothing to prevent national laws offering a wider or more extensive definition and there may be merit in that. The Minister said that we should deal with internal matters separately from this Bill. However, these other activities have increased in recent years and it may be worthwhile looking at organised groups who engage in systematic torture in a national and international capacity.
The convention applies only to torture by public officials. Paramilitary activity in Northern Ireland could be prosecuted here under the Criminal Law (Jurisdiction) Act, so there is no problem in that respect.
Amendment, by leave, withdrawn.
Government amendment No. 5:
In page 4, to delete lines 11 to 26.
Amendment agreed to.
Amendments Nos. 6 to 8, inclusive, not moved.
Government amendment No. 9:
In page 4, line 30, to delete "an offence under section 2" and substitute "the offence of torture".
Amendment agreed to.
Government amendment No. 10:
In page 4, lines 31 and 32, to delete "an offence under section 2" and substitute "the offence of torture".
Amendment agreed to.
Government amendment No. 11:
In page 4, lines 35 and 36, to delete "an offence under section 2" and substitute "the offence of torture".
Amendment agreed to.
I move amendment No. 12:
In page 4, between lines 38 and 39, to insert the following:
"4.–Where a person has before the commencement of this Act carried out an act of torture, whether within or outside the State which was at the time of such commission an offence against international law by reason of the fact that either–
(a) the act was carried out at any time and constituted or was carried out in the course of a crime against humanity, an act of genocide or a contravention of the laws and customs of war, or
(b) the act was carried out on or after the 10th day of December, 1984 and constituted a contravention of the Convention against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment, done at New York on the 10th day of December, 1984,
and which was at the time of such commission an unjust attack on the rights of any person, whether within or outside the State, being rights recognised at such time by the Constitution or the Constitution of Saorstát Éireann, such person shall be liable to prosecution for that offence in the State and on conviction on indictment thereof shall be liable to imprisonment for life.".
The purpose of this amendment is to deal with cases similar to that of General Pinochet in the UK. British law did not have a provision such as we are seeking to insert into this Bill, therefore, it was impossible to extradite him for crimes committed prior to the UK Act on torture. What would happen if a similar person were to enter this jurisdiction? How would we deal with such a person and would he or she be immune from extradition unless we inserted a provision of this nature?
A similar amendment was discussed on Committee Stage. This amendment seeks to make the offence of torture retrospective under our law but, as the Senator is aware, Article 15.5 of the Constitution contains a prohibition against the enactment of retrospective legislation which declares acts to be an infringement of the law which were not so at the time of their commission. I acknowledge that much ingenuity has been used in drafting the amendment to try to get around the constitutional prohibition but the advice available to me is that it fails to do so – in fact, there is no constitutional way to achieve what the amendment seeks.
On Committee Stage the Minister of State, Deputy Mary Wallace, outlined those difficulties but indicated there would be consultations with the Office of the Attorney General on whether there was any way to get around the constitutional issue involved. Regrettably, there is not. The advice is that Ireland takes a dualist approach to international law. Therefore, despite the adoption of the UN Convention by the General Assembly in December 1984, no offence is created in Ireland until provided for by our criminal law. Thus, unless the acts constituted an infringement of our law at the time of their commission, to seek to give retrospective effect to present legislation would be contrary to Article 15.5 of the Constitution.
The Senator will be disappointed but I hope he can accept it is not possible for me to do more in the circumstances and that he will withdraw the amendment.
I accept what the Minister says.
Amendment, by leave, withdrawn.
Amendments Nos. 13 to 15, inclusive, are related and may be taken together by agreement.
Government amendment No. 13:
In page 4, between lines 38 and 39, to insert the following:
"4.–(1) A person shall not be expelled or returned from the State to another state where the Minister is of the opinion that there are substantial grounds for believing that the person would be in danger of being subjected to torture.
(2) For the purposes of determining whether there are such grounds, the Minister shall take into account all relevant considerations including, where applicable, the existence in the state concerned of a consistent pattern of gross, flagrant or mass violations of human rights.".
On Committee Stage Senator Ryan asked whether Article 3 of the convention was adequately covered in the legislation. The Minister of State, Deputy Mary Wallace, undertook to examine the matter for Report Stage to ensure that we covered in our law the intention of that provision. Article 3.1 of the convention states that no party shall expel, return or extradite a person to another State where there are substantial grounds for believing he would be in danger of being subjected to torture. As the legislation stands it only covers extradition in section 6.
Officials of the Department consulted the parliamentary draftsman as to the best way to put it beyond doubt that Article 3 was fully provided for in our law, and the draftsman was of the view that provision should be made in this legislation rather than by way of amendment to the Refugee Act, 1996. I am satisfied that the official amendment, which was drafted on the basis of the wording of the Refugee Act and Article 3 of the convention, covers for Irish law the grounds contained in Article 3 of the convention. I thank the Labour Party for raising the matter and ask the Senator to support the amendment and to withdraw his own.
The Minister has met our concerns extremely well. It is important that we deal with cases where someone would be in danger of being subjected to torture if he or she was expelled from the State.
Amendment agreed to.
Amendments Nos. 14 to 16, inclusive, not moved.
Government amendment No. 17:
In page 6, to delete lines 32 to 35, and substitute the following:
"(2) This section shall come into operation on such day as the Minister may appoint by order.".
Amendment agreed to.
Government amendment No. 18:
In page 6, line 36, to delete "any Minister of the Government" and substitute "the Minister".
Amendment agreed to.
Amendment No. 19 not moved.
Government amendment No. 20:
In page 6, to delete lines 42 and 43.
Amendment agreed to.
Amendment No. 21 not moved.
Government amendment No. 22:
In page 6, after line 43, to insert the following:
Convention against Torture and Other
Cruel, Inhuman or Degrading
Treatment or Punishment
The States Parties to this Convention,
Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,
Recognizing that those rights derive from the inherent dignity of the human person,
Considering the obligation of States under the Charter, in particular Article 55, to promote universal respect for, and observance of, human rights and fundamental freedoms,
Having regard to article 5 of the Universal Declaration of Human Rights and article 7 of the International Covenant on Civil and Political Rights, both of which provide that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment,
Having regard also to the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the General Assembly on 9 December 1975,
Desiring to make more effective the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world,
Have agreed as follows:
1. For the purposes of this Convention, the term '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.
2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.
1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.
1. No State Party shall expel, return (‘refouler') or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a con sistent pattern of gross, flagrant or mass violations of human rights.
1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.
2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.
1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases:
(a) When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State;
(b) When the alleged offender is a national of that State;
(c) When the victim is a national of that State if that State considers it appropriate.
2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in paragraph 1 of this article.
3. This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law.
1. Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offence referred to in article 4 is present shall take him into custody or take other legal measures to ensure his presence. The custody and other legal measures shall be as provided in the law of that State but may be continued only for such time as is necessary to enable any criminal or extradition proceedings to be instituted.
2. Such State shall immediately make a preliminary inquiry into the facts.
3. Any person in custody pursuant to paragraph 1 of this article shall be assisted in communicating immediately with the nearest appropriate representative of the State of which he is a national, or, if he is a stateless person, with the representative of the State where he usually resides.
4. When a State, pursuant to this article, has taken a person into custody, it shall immediately notify the States referred to in article 5, paragraph 1, of the fact that such person is in custody and of the circumstances which warrant his detention. The State which makes the preliminary inquiry contemplated in paragraph 2 of this article shall promptly report its findings to the said States and shall indicate whether it intends to exercise jurisdiction.
1. The State Party in the territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.
2. These authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State. In the cases referred to in article 5, paragraph 2, the standards of evidence required for prosecution and conviction shall in no way be less stringent than those which apply in the cases referred to in article 5, paragraph 1.
3. Any person regarding whom proceedings are brought in connection with any of the offences referred to in article 4 shall be guaranteed fair treatment at all stages of the proceedings.
1. The offences referred to in article 4 shall be deemed to be included as extraditable offences in any extradition treaty existing between States Parties. States Parties undertake to include such offences as extraditable offences in every extradition treaty to be concluded between them.
2. If a State Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it has no extradition treaty, it may consider this Convention as the legal basis for extradition in respect of such offences. Extradition shall be subject to the other conditions provided by the law of the requested State.
3. States Parties which do not make extradition conditional on the existence of a treaty shall recognize such offences as extraditable offences between themselves subject to the conditions provided by the law of the requested State.
4. Such offences shall be treated, for the purpose of extradition between States Par ties, as if they had been committed not only in the place in which they occurred but also in the territories of the States required to establish their jurisdiction in accordance with article 5, paragraph 1.
1. States Parties shall afford one another the greatest measure of assistance in connection with criminal proceedings brought in respect of any of the offences referred to in article 4, including the supply of all evidence at their disposal necessary for the proceedings.
2. States Parties shall carry out their obligations under paragraph 1 of this article in conformity with any treaties on mutual judicial assistance that may exist between them.
1. 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.
2. Each State Party shall include this prohibition in the rules or instructions issued in regard to the duties and functions of any such persons.
Each State Party shall keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture.
Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.
Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treat ment or intimidation as a consequence of his complaint or any evidence given.
1. Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation.
2. Nothing in this article shall affect any right of the victim or other persons to compensation which may exist under national law.
Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.
1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment.
2. The provisions of this Convention are without prejudice to the provisions of any other international instrument or national law which prohibits cruel, inhuman or degrading treatment or punishment or which relates to extradition or expulsion.
1. There shall be established a Committee against Torture (hereinafter referred to as the Committee) which shall carry out the functions hereinafter provided. The Committee shall consist of ten experts of high moral standing and recognised competence in the field of human rights, who shall serve in their personal capacity. The experts shall be elected by the States Parties, consideration being given to equitable geographical distribution and to the usefulness of the participation of some persons having legal experience.
2. The members of the Committee shall be elected by secret ballot from a list of persons nominated by States Parties. Each State Party may nominate one person from among its own nationals. States Parties shall bear in mind the usefulness of nominating persons who are also members of the Human Rights Committee established under the International Covenant on Civil and Political Rights and who are willing to serve on the Committee against Torture.
3. Elections of the members of the Committee shall be held at biennial meetings of States Parties convened by the Secretary-General of the United Nations. At those meetings, for which two thirds of the States Parties shall constitute a quorum, the persons elected to the Committee shall be those who obtain the largest number of votes and an absolute majority of the votes of the representatives of States Parties present and voting.
4. The initial election shall be held no later than six months after the date of the entry into force of this Convention. At least four months before the date of each election, the Secretary-General of the United Nations shall address a letter to the States Parties inviting them to submit their nominations within three months. The Secretary-General shall prepare a list in alphabetical order of all persons thus nominated, indicating the States Parties which have nominated them, and shall submit it to the States Parties.
5. The members of the Committee shall be elected for a term of four years. They shall be eligible for re-election if renominated. However, the term of five of the members elected at the first election shall expire at the end of two years; immediately after the first election the names of these five members shall be chosen by lot by the chairman of the meeting referred to in paragraph 3 of this article.
6. If a member of the Committee dies or resigns or for any other cause can no longer perform his Committee duties, the State Party which nominated him shall appoint another expert from among its nationals to serve for the remainder of his term, subject to the approval of the majority of the States Parties. The approval shall be considered given unless half or more of the States Parties respond negatively within six weeks after having been informed by the Secretary-General of the United Nations of the proposed appointment.
7. States Parties shall be responsible for the expenses of the members of the Committee while they are in performance of Committee duties.
1. The Committee shall elect its officers for a term of two years. They may be re-elected.
2. The Committee shall establish its own rules of procedure, but these rules shall provide,inter alia, that:
(a) Six members shall constitute a quorum;
(b) Decisions of the Committee shall be made by a majority vote of the members present.
3. The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Committee under this Convention.
4. The Secretary-General of the United Nations shall convene the initial meeting of the Committee. After its initial meeting, the Committee shall meet at such times as shall be provided in its rules of procedure.
5. The States Parties shall be responsible for expenses incurred in connection with the holding of meetings of the States Parties and of the Committee, including reimbursement to the United Nations for any expenses, such as the cost of staff and facilities, incurred by the United Nations pursuant to paragraph 3 of this article.
1. The States Parties shall submit to the Committee, through the Secretary-General of the United Nations, reports on the measures they have taken to give effect to their undertakings under this Convention, within one year after the entry into force of the Convention for the State Party concerned. Thereafter the States Parties shall submit supplementary reports every four years on any new measures taken and such other reports as the Committee may request.
2. The Secretary-General of the United Nations shall transmit the reports to all States Parties.
3. Each report shall be considered by the Committee which may make such general comments on the report as it may consider appropriate and shall forward these to the State Party concerned. That State Party may respond with any observations it chooses to the Committee.
4. The Committee may, at its discretion, decide to include any comments made by it in accordance with paragraph 3 of this article, together with the observations thereon received from the State Party concerned, in its annual report made in accordance with article 24. If so requested by the State Party concerned, the Committee may also include a copy of the report submitted under paragraph 1 of this article.
1. If the Committee receives reliable information which appears to it to contain well-founded indications that torture is being systematically practised in the territory of a State Party, the Committee shall invite that State Party to co-operate in the examination of the information and to this end to submit observations with regard to the information concerned.
2. Taking into account any observations which may have been submitted by the State Party concerned, as well as any other relevant information available to it, the Committee may, if it decides that this is warranted, designate one or more of its members to make a confidential inquiry and to report to the Committee urgently.
3. If an inquiry is made in accordance with paragraph 2 of this article, the Committee shall seek the co-operation of the State Party concerned. In agreement with that State Party, such an inquiry may include a visit to its territory.
4. After examining the findings of its member or members submitted in accordance with paragraph 2 of this article, the Committee shall transmit these findings to the State Party concerned together with any comments or suggestions which seem appropriate in view of the situation.
5. All the proceedings of the Committee referred to in paragraphs 1 to 4 of this article shall be confidential, and at all stages of the proceedings the co-operation of the State Party shall be sought. After such proceedings have been completed with regard to an inquiry made in accordance with paragraph 2, the Committee may, after consultations with the State Party concerned, decide to include a summary account of the results of the proceedings in its annual report made in accordance with article 24.
1. A State Party to this Convention may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under this Convention. Such communications may be received and considered according to the procedures laid down in this article only if submitted by a State Party which has made a declaration recognizing in regard to itself the competence of the Committee. No communication shall be dealt with by the Committee under this article if it concerns a State Party which has not made such a declaration. Communications received under this article shall be dealt with in accordance with the following procedure:
(a) If a State Party considers that another State Party is not giving effect to the provisions of this Convention, it may, by written communication, bring the matter to the attention of that State Party. Within three months after the receipt of the communication the receiving State shall afford the State which sent the communication an explanation or any other statement in writing clarifying the matter, which should include, to the extent possible and pertinent, reference to domestic procedures and remedies taken, pending or available in the matter;
(b) If the matter is not adjusted to the satisfaction of both States Parties concerned within six months after the receipt by the receiving State of the initial communication, either State shall have the right to refer the matter to the Committee, by notice given to the Committee and to the other State;
(c) The Committee shall deal with a matter referred to it under this article only after it has ascertained that all domestic remedies have been invoked and exhausted in the matter, in conformity with the generally recognized principles of international law. This shall not be the rule where the application of the remedies is unreasonably prolonged or is unlikely to bring effective relief to the person who is the victim of the violation of this Convention;
(d) The Committee shall hold closed meetings when examining communications under this article;
(e) Subject to the provisions of subparagraph (c), the Committee shall make available its good offices to the States Parties concerned with a view to a friendly solution of the matter on the basis of respect for the obligations provided for in this Convention. For this purpose, the Committee may, when appropriate, set up anad hoc conciliation commission;
(f) In any matter referred to it under this article, the Committee may call upon the States Parties concerned, referred to in subparagraph (b), to supply any relevant information;
(g) The States Parties concerned, referred to in subparagraph (b), shall have the right to be represented when the matter is being considered by the Committee and to make submissions orally and/or in writing;
(h) The Committee shall, within twelve months after the date of receipt of notice under subparagraph (b), submit a report:
(i)If a solution within the terms of subparagraph (e) is reached, the Committee shall confine its report to a brief statement of the facts and of the solution reached;
(ii)If a solution within the terms of subparagraph (e) is not reached, the Committee shall confine its report to a brief statement of the facts; the written submissions and record of the oral submissions made by the States Parties concerned shall be attached to the report.
In every matter, the report shall be communicated to the States Parties concerned.
2. The provisions of this article shall come into force when five States Parties to this Convention have made declarations under paragraph 1 of this article. Such declarations shall be deposited by the States Parties with the Secretary-General of the United Nations, who shall transmit copies thereof to the other States Parties. A declaration may be withdrawn at any time by notification to the Secretary-General. Such a withdrawal shall not prejudice the consideration of any matter which is the subject of a communication already transmitted under this article; no further communication by any State Party shall be received under this article after the notification of withdrawal of the declaration has been received by the Secretary-General, unless the State Party concerned has made a new declaration.
1. A State Party to this Convention may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim to be victims of a violation by a State Party of the provisions of the Convention. No communication shall be received by the Committee if it concerns a State Party which has not made such a declaration.
2. The Committee shall consider inadmissible any communication under this article which is anonymous or which it considers to be an abuse of the right of submission of such communications or to be incompatible with the provisions of this Convention.
3. Subject to the provisions of paragraph 2, the Committee shall bring any communications submitted to it under this article to the attention of the State Party to this Convention which has made a declaration under paragraph 1 and is alleged to be violating any provisions of the Convention. Within six months, the receiving State shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by that State.
4. The Committee shall consider communications received under this article in the light of all information made available to it by or on behalf of the individual and by the State Party concerned.
5. The Committee shall not consider any communications from an individual under this article unless it has ascertained that:
(a) The same matter has not been, and is not being, examined under another procedure of international investigation or settlement;
(b) The individual has exhausted all available domestic remedies; this shall not be the rule where the application of the remedies is unreasonably prolonged or is unlikely to bring effective relief to the person who is the victim of the violation of this Convention.
6. The Committee shall hold closed meetings when examining communications under this article.
7. The Committee shall forward its views to the State Party concerned and to the individual.
8. The provisions of this article shall come into force when five States Parties to this Convention have made declarations under paragraph 1 of this article. Such declarations shall be deposited by the States Parties with the Secretary-General of the United Nations, who shall transmit copies thereof to the other States Parties. A declaration may be withdrawn at any time by notification to the Secretary-General. Such a withdrawal shall not prejudice the consideration of any matter which is the subject of a communication already transmitted under this article; no further communication by or on behalf of an individual shall be received under this article after the notification of withdrawal of the declaration has been received by the Secretary-General, unless the State Party has made a new declaration.
The members of the Committee and of the ad hoc conciliation commissions which may be appointed under article 21, paragraph 1 (e), shall be entitled to the facilities, privileges and immunities of experts on mission for the United Nations as laid down in the relevant sections of the Convention on the Privileges and Immunities of the United Nations.
The Committee shall submit an annual report on its activities under this Convention to the States Parties and to the General Assembly of the United Nations.
1. This Convention is open for signature by all States.
2. This Convention is subject to ratification. Instruments of ratification shall be deposited with the Secretary-General of the United Nations.
This Convention is open to accession by all States. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations.
1. This Convention shall enter into force on the thirtieth day after the date of the deposit with the Secretary-General of the United Nations of the twentieth instrument of ratification or accession.
2. For each State ratifying this Convention or acceding to it after the deposit of the twentieth instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after the date of the deposit of its own instrument of ratification or accession.
1. Each State may, at the time of signature or ratification of this Convention or accession thereto, declare that it does not recognize the competence of the Committee provided for in article 20.
2. Any State Party having made a reservation in accordance with paragraph 1 of this article may, at any time, withdraw this reservation by notification to the Secretary-General of the United Nations.
1. Any State Party to this Convention may propose an amendment and file it with the Secretary-General of the United Nations. The Secretary-General shall thereupon communicate the proposed amendment to the States Parties with a request that they notify him whether they favour a conference of States Parties for the purpose of considering and voting upon the proposal. In the event that within four months from the date of such communication at least one third of the States Parties favours such a conference, the Secretary-General shall convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of the States Parties present and voting at the conference shall be submitted by the Secretary-General to all the States Parties for acceptance.
2. An amendment adopted in accordance with paragraph 1 of this article shall enter into force when two thirds of the States Parties to this Convention have notified the Secretary-General of the United Nations that they have accepted it in accordance with their respective constitutional processes.
3. When amendments enter into force, they shall be binding on those States Parties which have accepted them, other States Parties still being bound by the provisions of this Convention and any earlier amendments which they have accepted.
1. Any dispute between two or more States Parties concerning the interpretation or application of this Convention which cannot be settled through negotiation shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the Parties are unable to agree on the organization of the arbitration, any one of those Parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court.
2. Each State may, at the time of signature or ratification of this Convention or accession thereto, declare that it does not consider itself bound by paragraph 1 of this article. The other States Parties shall not be bound by paragraph 1 of this article with respect to any State Party having made such a reservation.
3. Any State Party having made a reservation in accordance with paragraph 2 of this article may at any time withdraw this reservation by notification to the Secretary-General of the United Nations.
1. A State Party may denounce this Convention by written notification to the Secretary-General of the United Nations. Denunciation becomes effective one year after the date of receipt of the notification by the Secretary-General.
2. Such a denunciation shall not have the effect of releasing the State Party from its obligations under this Convention in regard to any act or omission which occurs prior to the date at which the denunciation becomes effective, nor shall denunciation prejudice in any way the continued consideration of any matter which is already under consideration by the Committee prior to the date at which the denunciation becomes effective.
3. Following the date at which the denunciation of a State Party becomes effective, the Committee shall not commence consideration of any new matter regarding that State.
The Secretary-General of the United Nations shall inform all States Members of the United Nations and all States which have signed this Convention or acceded to it of the following:
(a) Signatures, ratifications and accessions under articles 25 and 26;
(b) The date of entry into force of this Convention under article 27 and the date of the entry into force of any amendments under article 29;
(c) Denunciations under article 31.
1. This Convention, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations.
2. The Secretary-General of the United Nations shall transmit certified copies of this Convention to all States.".
Amendment agreed to.
Bill, as amended, received for final consideration.
Question proposed: "That the Bill do now pass."
I thank the Minister and his officials for the manner in which they responded so comprehensively and generously to the concerns expressed by my colleague, Senator Ryan, on Committee Stage. The Bill has been improved by the amendments made to it. I am delighted the text of the UN convention will be inserted in this Bill. That is important because it underpins the statutory provision we are making. I thank the Minister for the manner in which he has handled this legislation and I thank his staff for being so efficient.
I thank the Minister for Justice, Equality and Law Reform for bringing forward this legislation and for ensuring that the important international convention is incorporated into Irish law. I spoke on Second Stage but I was not present for Committee Stage. I stated on Second Stage that there was other legislation that we needed to incorporate into Irish law, that is to ratify the UN convention and the setting up of an international criminal court. This legislation deals with perpetrators of torture acting on behalf of the State. If we had an international criminal court it would make amenable to such a court the people who order such heinous acts all over the world. This arises from an agreement Ireland signed in Rome last July, almost a year ago today. To ratify that agreement, 60 countries must sign it. I appeal to the Minister to ask his Department to start working on that and, hopefully, he will bring forward legislation in the autumn for ratification in both Houses.
I thank my colleagues and the Minister of State for the speedy passage of this Bill. There were ten Government amendments and most of them were brought to bear by the commitment of the Opposition speakers on Committee Stage. This indicates the sincerity of the Department and its officials in listening to what Senators said. Most of the points raised by my Opposition colleagues were introduced in the form of Government amendments. This is probably the last opportunity I will have to speak and I wish all my colleagues and the Leas-Chathaoirleach a happy summer recess.
Despite some frosty crossfire, Senators will accept that most of it was in good fashion and that it is part of political life. I wish everyone concerned a good break.
I thank all the Senators for their contributions to this Bill, which is important. It is one of a significant number of Government Bills which are being initiated in the Seanad and that shows the importance of the Seanad in the initiation and teasing out of some of the more complex legislation. It is clear from the changes we have agreed to that the Bill has been substantially improved as a result of the deliberations of this House. I thank the Labour Senators for the amount of background work and research that went into their amendments. As Senator O'Donovan stated, their work brought about the Government's amendments and improved the Bill.
We all accept that Ireland's ratification of the UN convention is overdue and we look forward to the passage of this legislation in the Dáil early in the next session. I am grateful for the way in which Senators dealt with this Bill and the speedy manner in which it has been dealt with. I thank everyone involved, not least the officials of the Department of Justice, Equality and Law Reform who have given far more comprehensive responses to amendments than is normal. That leads to a better understanding on the part of all of us as to what is being achieved in the Bill.
Question put and agreed to.
Sitting suspended at 11.55 a.m. and resumed at 2.30 p.m.