Background and definitions

Understanding human rights is important because of the effect its issues have on our daily
lives.  Many philosophers and scholars have dealt with the subject of the human rights.
One of them, Jacques Maritain argued successfully that human rights are not bought, nor
are they created by any other contractual undertaking.  Nowadays, it is universally
accepted that natural, i.e., human rights, belong to people simply because they are human
beings and that people still have these rights even when the laws of their own countries do
not recognize or protect them.

One of the most important fundamental human rights is the right people have not to be
tortured.  All human rights documents state that people have the right not to be tortured
or subjected to inhuman or degrading treatment or punishment.  These documents make
the prevention of these actions a priority for all the states.  Subsequently, different issues
and problems arise such as; - the implementation of the international documents’
provisions into the national law; - the level of this implementation, (should such provisions
be written in the fundamental law of the state, the constitution) - the interpretation of the
very meaning of the words used in these provisions, - the need for establishing a
mechanism of prevention etc.

It is important to give a definition of the words used by the human rights documents now,
while some of the other issues will be tackled briefly later in this paper.  The definitions
are those given and accepted by the international organizations and documents.

Torture is defined as an act intentionally inflicted by, or on the orders of, or with the
agreement of, a public official, or person acting in an official capacity; causing severe pain
or suffering, physical or mental, on a person, in order:

to obtain information or a confession
to punish
to intimidate or coerce
or for any other reason based on discrimination.

Torture is an aggravated, or worse form of cruel, inhuman or degrading treatment or
punishment.

A Cruel Punishment is one designed to inflict suffering unnecessarily. Its definition
depends on a wide range of circumstances.  For example, it includes, depriving a person
of the use of any of his natural senses, such as sight or hearing or of his awareness of
place or the passing of time.  The striping of someone of their nationality can be
considered a cruel punishment as well.
Inhuman treatment or punishment must come up to a minimum level of severity to be
inhuman.  For example some act designed to cause severe mental or physical stress, such
as prolonged solitary confinement or the deprivation of sleep.

Degrading treatment is a treatment which grossly humiliates an individual or forces
him/her to act against his/her will or conscience is degrading. It need not be physical or
public.  It is sufficient if a person is humiliated in his/her own eyes.  For example, the
punishment of “lashing” (or beating someone) not only humiliates and disgraces the
offender but also degrades all others who take part in the procedure.

What does this have to do with me?

Each one of us may - in one way or another - become subject or relate to such actions as
torture, and inhuman or degrading treatment or punishment.  Although we may never be
the ones to carry out or suffer the direct consequences of these actions we can still be
affected by them.  A lot  of examples from our daily lives can be given and prove this to
be true:

For example, once people are arrested, they may face interrogation or formal questioning
by the police.  Sometimes interrogation can go too far.  Innocent people have been
known to confess to crimes they did not commit as a result of a harsh interrogation or
torture.  People should never be forced to make confessions.  There might have been
times when we have thought that a harsh interrogation is probably the only way to find the
truth or to discover other crimes.  Can the breach of the human right never to be tortured
ever be justified?  Let us take the example of the accused;

No one can be called guilty before a judge has sentenced him.  The accused is - until his
crime is proved - an innocent person according to the laws.  Therefore, an innocent
person should never be tortured.

Torture and other similar violations are being used more frequently today against women
and children as well as men.  As more women join in the public life of their countries they
are targeted for torture or other similar violations directed against them as women.  This
actions can be in the form of rape or sexual assault by their officials.  Also targeted are
the students who are seen by some governments as being to active in the public life of
their country.  Sometimes children are forced to watch while their parents are tortured.

Any action or punishment that contravenes basic human rights standards is unacceptable
and cannot be justified.  It is important and expected from each democratic society to
take measures for the prevention of such actions and guarantee the basic human rights to
its citizens.

How can the prevention of torture and inhuman or degrading treatment or
punishment be done?

There are a number of difficulties involved in proving the violation of the human right not
to be tortured.  It can be because of the fact that usually there are no witnesses or the
victim fears reprisals upon him/herself or members of the family.  It can as well be
because of the reluctance by the authorities to admit breaches by their law enforcement
agencies, or to implement an investigation.  The fact that the torture, or other cruel,
inhuman or degrading treatment or punishment has left no visible mark can be another
difficulty in proving the violation of this right.


The first step for the prevention of these actions is the incorporation of this fundamental
human rights in the national legislation.  To have that as one of the Constitutional
provisions, means to bring or amend all the other national legislation in conformity with
those provisions.
Nevertheless, the implementation of this right is not sufficient to prohibit such treatment or
punishment.  The state must ensure an effective protection through some machinery of
control.  International documents and organizations have recommended a number of
safeguards and suggestions to make the prevention of torture and other similar violations a
reality.  Some of them are:

The prohibition of torture in law by considering it a criminal offence,
Prosecution of alleged tortures,
Instructions to officials that they are obliged to refuse to obey any order to
torture,
No use of statement extracted under torture,
Independent investigation of reports of torture,
Limits on incommunicado detention, etc.

Conclusions

The right not to be tortured is one of the fundamental human rights.  This right is
NON-DEROGABLE and can not be suspended under any circumstances.  The
prevention of torture and inhuman or degrading treatment or punishment is a delicate and
complicated process.  The implementation of this right into the national law is only the first
step and does not suffice to prohibit such treatments.  There is need for further actions to
be taken, such as the establishment of a mechanism of control.

Submitted by Shkëlzen Zeneli
qakapp/accapp
Rr. “Donika Kastrioti”, Vila Nr. 6
Tirana, Albania
Tel: 355-42-406 72
Fax: 355-42-406 73