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FN’s Menneskerettighedsråd.

UN, Human Rights Council (UNHRC)


Dokument A/HRC/52/30

Good practices in national criminalization, investigation, prosecution and sentencing for offences of torture (2023)

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Para 14 "In particular, torture is first and foremost a crime committed or enabled by public officials or, at times, promoted either quietly or outwardly by government policy or direction, or through consent or acquiescence"


Para 21

States parties to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment have explicit treaty duties to establish all acts of torture as offences under domestic law (art. 4), to exercise jurisdiction over said offences (art. 5), to receive complaints and examine them promptly and impartially (art. 13), and to investigate those allegations promptly and impartially (art. 12). Defendants cannot rely on orders of a superior or public authority, or states of emergency, to exonerate their actions (art. 2 (3) and 2.(2)), while any legal mechanisms which interfere with that obligation, such as statutes of limitations, immunities or amnesties, are considered contrary to the non-derogable nature of the prohibition. Amnesties provided at domestic law do not remove criminal liability pursuant to international tribunals or universal jurisdiction


Para 38

Establishing an indictable offence of torture in domestic criminal or penal codes is a primary obligation. Any delays in doing so interfere with the implementation of other obligations under the Convention against Torture.


Para 54

For child victims of torture, special responsibilities arise and require dedicated specialists who are trained to put the child’s best interests at the centre of any decision-making, including the child’s right to psychological recovery


Para 61

States have a duty to act as soon as a complaint has been lodged or, in the absence of a complaint, to investigate ex officio “wherever there is reasonable ground to believe that an act of torture has been committed in any territory under their jurisdiction”.


Para 62

For impunity to end, all public officials should be formally required to notify the competent independent authorities immediately upon becoming aware of allegations or indications of torture or ill-treatment. It is a gross contravention of medical ethics for medical personnel to participate or be complicit in acts of torture.


Para 63

There can be no effective torture prevention if the same authorities against whom allegations are being made are themselves investigating their peers, subordinates or superiors. If investigators are not hierarchically, administratively and financially independent of the authorities they are investigating there is an irreconcilable conflict of interest. The principle of impartiality applies to all persons involved in investigating incidents or in taking decisions in reference to incidents, including the investigative body, forensic medical practitioners engaged to document the incident, prosecutors, lawyers, judges and special bodies.


Para 69

Penalties are to be commensurate with the gravity of the offence of torture, which should be assessed according to penalties established in national legislation for the most serious offences and sentencing laws and/or guidelines. When an act of torture is committed by a public authority, the punishment should take into account the special responsibility that public authorities play in society. Higher penalties may be due for those exercising superior orders or command responsibility. Based on the concluding observations of the Committee against Torture, it is indicated that an appropriate custodial sentence for the crime of torture ranges from 6 to 20 years’ imprisonment and that one year is inadequate


 

Dokument A/HRC/31/57

Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment (5. Jan. 2016)

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Para 34 

Lesbian, gay, bisexual and transgender persons who are deprived of their liberty are at particular risk of torture and ill-treatment, both within the criminal justice system and in other contexts such as immigration detention, medical establishments and drug rehabilitation centres. Criminal justice systems tend to overlook and neglect their specific needs at all levels. Transgender persons tend to be placed automatically in male or female prisons or wards without regard to their gender identity or expression.


Para 35 

Lesbian, gay, bisexual and transgender detainees report higher rates of sexual, physical and psychological violence in detention than on the basis of sexual orientation and/or gender identity than the general prison population (CAT/C/CRI/CO/2). Violence against these persons in custodial settings, whether by police, other law enforcement authorities, prison staff or other prisoners, is prevalent (A/HRC/29/23). Fear of reprisals and a lack of trust in the complaints mechanisms frequently prevent lesbian, gay, bisexual and transgender persons in custody from reporting abuses. Their placement in solitary confinement or administrative segregation for their own “protection” can constitute an infringement on the prohibition of torture and ill-treatment. Authorities have a responsibility to take reasonable measures to prevent and combat violence against lesbian, gay, bisexual and transgender detainees by other detainees.


Para 36 

Humiliating and invasive body searches may constitute torture or ill-treatment, particularly for transgender detainees. In States where homosexuality is criminalized, men suspected of same-sex conduct are subject to non-consensual anal examinations intended to obtain physical evidence of homosexuality, a practice that is medically worthless and amounts to torture or ill-treatment (CAT/C/CR/29/4).


 

Dokument A/HRC/29/23

Discrimination and violence against individuals based on

their sexual orientation and gender identity (4. Maj 2015)

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Para 13

States have an obligation to protect all persons, including LGBT and intersex

persons, from torture and other cruel, inhuman or degrading treatment or punishment in

custodial, medical and other settings. This obligation extends to prohibiting, preventing,

investigating and providing redress for torture and ill-treatment in all contexts of State

control, including by ensuring that such acts are offences under domestic criminal law.

State responsibility is engaged if public officials, including prison and police officers,

directly commit, instigate, incite, encourage, acquiesce in or otherwise participate or are

complicit in such acts, as well as if officials fail to prevent, investigate, prosecute and

punish such acts by public or private actors.


Para 14

The medical practices condemned by United Nations mechanisms in this context include so-called “conversion” therapy, forced genital and anal examinations, forced and otherwise involuntary sterilization and medically unnecessary surgery and treatment performed on intersex children.


Para 38

Other medical procedures that can, when forced or otherwise involuntary, breach the prohibition on torture and ill-treatment include “conversion” therapy, sterilization, gender reassignment, and unnecessary medical interventions involving intersex children.


Para 53

Many intersex children, born with atypical sex characteristics, are subjected to

medically unnecessary surgery and treatment in an attempt to force their physical

appearance to align with binary sex stereotypes. Such procedures are typically irreversible

and can cause severe, long-term physical and psychological suffering. Those to have called

for an end to the practice include the Committee on the Rights of the Child, the Committee

against Torture, the special procedures mandate holders on the right to health and on

torture.


Para 78

The High Commissioner recommends that States address violence by:

(a) Enacting hate crime laws that establish homophobia and transphobia as

aggravating factors for purposes of sentencing;


(b) Conducting prompt, thorough investigations of incidents of hatemotivated violence against and torture of LGBT persons, holding perpetrators to

account, and providing redress to victims;


(c) Collecting and publishing data on the number and types of incidents,

while providing for the security of those reporting;


(d) Prohibiting incitement of hatred and violence on the grounds of sexual

orientation and gender identity, and holding to account those responsible for related

hate speech;


(e) Training law enforcement personnel and judges in gender-sensitive

approaches to addressing violations related to sexual orientation and gender identity;


(f) Ensuring that police and prison officers are trained to protect the safety

of LGBT detainees, and holding to account State officials involved or complicit in

incidents of violence;


(g) Banning “conversion” therapy, involuntary treatment, forced

sterilization and forced genital and anal examinations;


(h) Prohibiting medically unnecessary procedures on intersex children;


(i) Ensuring that no one fleeing persecution on grounds of sexual

orientation or gender identity is returned to a territory where his or her life or

freedom would be threatened, that asylum laws and policies recognize that

persecution on account of sexual orientation or gender identity may be a valid basis

for an asylum claim; and eliminating intrusive, inappropriate questioning on asylum

applicants’ sexual histories, and sensitizing refugee and asylum personnel.


 

Dokument A/HRC/22/53

Report of the Special Rapporteur on torture and

other cruel, inhuman or degrading treatment or

punishment, Juan E. Méndez (1. Feb. 2013) klik her for at komme til originalen


Para 15

"The conceptualization of abuses in health-care settings as torture or ill-treatment is a relatively recent phenomenon. In the present section, the Special Rapporteur embraces this ongoing paradigm shift, which increasingly encompasses various forms of abuse in healthcare settings within the discourse on torture. He demonstrates that, while the prohibition of torture may have originally applied primarily in the context of interrogation, punishment or intimidation of a detainee, the international community has begun to recognize that torture may also occur in other contexts."


Para 20

"The mandate has stated previously that intent, required in article 1 of the Convention, can be effectively implied where a person has been discriminated against on the basis of disability. This is particularly relevant in the context of medical treatment, where serious violations and discrimination against persons with disabilities may be defended as “well intended” on the part of health-care professionals."


 

Dokument A/HR/C/19/41

Discriminatory laws and practices and acts of violence

against individuals based on their sexual orientation and

gender identity (17 Nov. 2011)

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Para 15

The right to be free from discrimination is included in the Universal Declaration of Human Rights (art. 2) and core international human rights treaties, including the International Covenant on Economic, Social and Cultural Rights (art. 2) and the Convention on the Rights of the Child (art. 2). Article 26 of the International Covenant on Civil and Political Rights guarantees equality before the law, requiring States to prohibit discrimination.


Para 56

“The Committee on the Elimination of Discrimination against Women expressed concern about lesbian, bisexual, transgender and intersex women as “victims of abuses and mistreatment by health service providers”


Para 57

"Health-care professionals are often insensitive to the needs of transgender persons and lack necessary professional training. In addition, intersex children, who are born with atypical sex characteristics, are often subjected to discrimination and medically unnecessary surgery, performed without their informed consent, or that of their parents, in an attempt to fix their sex."

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