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Framework for Communications - III 2

VULNERABLE GROUPS

2. Persons deprived of their liberty

Human Rights Committee general comment 22

Para . 8 : "Persons already subject to certain legitimate constraints, such as prisoners, continue to enjoy their rights to manifest their religion or belief to the fullest extent compatible with the specific nature of the constraint. States parties' reports should provide information on the full scope and effects of limitations under article 18.3, both as a matter of law and of their application in specific circumstances."

Standard Minimum Rules for the Treatment of Prisoners

Rule 41 :

"(1) If the institution contains a sufficient number of prisoners of the same religion, a qualified representative of that religion shall be appointed or approved. If the number of prisoners justifies it and conditions permit, the arrangement should be on a full-time basis.

(2) A qualified representative appointed or approved under paragraph (1) shall be allowed to hold regular services and to pay pastoral visits in private to prisoners of his religion at proper times.

(3) Access to a qualified representative of any religion shall not be refused to any prisoner. On the other hand, if any prisoner should object to a visit of any religious representative, his attitude shall be fully respected."

Rule 42 : "So far as practicable, every prisoner shall be allowed to satisfy the needs of his religious life by attending the services provided in the institution and having in his possession the books of religious observance and instruction of his denomination."

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Excerpts of relevant paragraphs of 25 years mandate reporting practice (1986-2011)

E/CN.4/1999/58/Add.2, paras. 120-121 (country visit to Vietnam):

"120. The religious prisoners belonging to the different religious communities (to the Special Rapporteur's knowledge, Buddhists, Catholics, Cao Dais, Hoa Haos and Protestants) are deprived of their religious freedom in that they are prevented from practising their religion; this is contrary to international standards, in particular the Standard Minimum Rules for the Treatment of Prisoners (rules 41 and 42).

121. The amnesties recently granted by the Vietnamese authorities to prisoners of different denominations (EBUV, Catholics, Hoa Haos, Cao Dais) are welcome developments and hold promise for positive changes. After their release, however, both congregants and clergy must be able to resume their religious activities in full freedom and full citizenship (granting of a residence permit, restoration of property, etc.). The Special Rapporteur also encourages the Vietnamese Government to extend the amnesty measures to all prisoners detained for peacefully and lawfully exercising their right to freedom of opinion, conscience, expression and religion."

A/60/399, paras. 69-91:

" B. The freedom of religion or belief of detainees

1. Situations reported under the mandate

69. Over the past few years, in addition to the alarming reports of persons being arrested and held in custody because of their religious beliefs, the Special Rapporteur has received a growing number of reports of alleged violations of the right to freedom of religion or belief of persons deprived of their liberty.

70. Among the cases that were brought to her attention were complaints about conditions of detention, in particular not being allowed to have a Bible or to receive communion (see A/58/296, para. 79), punishment of Muslims for observing the Ramadan fast, ibid., para. 106) as well as reports of several Muslim women prisoners complaining of "violations of their right to freedom of worship, having been punished for praying, having copies of the Koran confiscated and being forbidden to wear the veil (ibid., para. 107). There were reports of prisoners being subjected to torture or ill-treatment in an attempt to force them to abandon their faith (see A/59/366, para. 30) and reports of individuals who because of their beliefs had been subjected to torture and other inhuman or degrading treatment while detained and who had not been provided with appropriate and effective remedies (ibid., para. 19). Finally, the Special Rapporteur was also informed of situations where clergy were denied access to death row prisoners (ibid., para. 83 (a)).

71. While these forms of violations of the right to freedom of religion or belief constitute per se a matter of great concern for the Special Rapporteur, this concern was heightened by further reports that, in certain circumstances, not only were the prisoners' rights to freedom of religion or belief violated, but their religious beliefs were used against them by prison authorities. For example, there have been reports of interrogation methods designed specifically to injure the religious feelings of persons in detention.

72. The Special Rapporteur considers that the cases reported disclose violations of the basic religious rights of prisoners and other persons in detention. In addition, they disclose acts of impermissible discrimination including torture or other forms of ill-treatment inflicted on detainees on the basis of their religion and other acts aimed at injuring the religious feelings of detainees. Such acts were committed by personnel of detention facilities as well as by other detainees.

2. Applicable international standards

73. Persons deprived of their liberty have the right to freedom of religion or belief. Articles 2 and 5 of the Universal Declaration of Human Rights provide, respectively, that the rights and freedoms contained in the Declaration apply to everyone without exception and that no one shall be subjected torture or to cruel, inhuman or degrading treatment or punishment. Article 10, paragraph 1 of ICCPR further provides that "All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person."

74. In its general comment No. 22 (1993) on Article 18 of the Covenant, which uses language similar to Article 18 of the Universal Declaration, the Human Rights Committee has stressed that "[p]ersons already subject to certain legitimate constraints, such as prisoners, continue to enjoy their rights to manifest their religion or belief to the fullest extent compatible with the specific nature of the constraint. States parties' reports should provide information on the full scope and effects of limitations under article 18.3, both as a matter of law and of their application in specific circumstances" (para. 8).

(a) The principle of non-discrimination

75. The principle of non-discrimination, reaffirmed, inter alia, in article 2 of ICCPR, is a fundamental rule of international law. The Special Rapporteur notes that according to commentators,

"The dangers of discrimination become much greater in the closed conditions of a prison. Prison administrations have a responsibility to ensure that they prevent the development of sub-groups that discriminate against minorities, both within their staff and within the prison population. This may require additional vigilance on any occasion when tensions are heightened in the community outside the prison.

"Many of the prejudices which exist in society against minority groups are reflected in the world of the prison. This is no surprise since prisons to a great extent mirror the values of the society in which they exist. Prison authorities have a responsibility to ensure that there is no discrimination against any minority group of prisoners or staff. This includes institutional discrimination which is within the structure of the organisation as well as discrimination which is practised by individuals." [See Andrew Coyle, International Centre for Prison Studies, "A Human Rights Approach to Prison Management: Handbook for prison staff", London, 2002, p. 147. See also at p. 149: "Equality of treatment involves more than ensuring that there is no discrimination. It also means taking positive action to make sure that the special needs of minority groups are met. This can involve providing special diets for some prisoners on either religious or cultural grounds. Such a provision may not involve any additional cost; it may simply mean better organisation. Minority groups frequently have different religious needs. They should always be able to observe the tenets of their religion in terms of such matters as personal or communal prayers, hygiene and clothing requirements."]

76. Article 27 of ICCPR provides that "In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language."

77. The provisions of the International Convention on the Elimination of All Forms of Racial Discrimination are also of particular relevance in this context. Article 5 of the Convention provides that: "In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the [...] right to freedom of thought, conscience and religion."

78. The principle of equal rights without discrimination is confirmed in principle 5, paragraph 1, of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment: "These principles shall be applied to all persons within the territory of any given State, without distinction of any kind, such as race, colour, sex, language, religion or religious belief, political or other opinion, national, ethnic or social origin, property, birth or other status."

79. In terms of prisons conditions, the Human Rights Committee also affirms in its general comment No. 21 (1992), concerning the human treatment of persons deprived of liberty, that "Treating all persons deprived of their liberty with humanity and with respect for their dignity is a fundamental and universally applicable rule.. This rule must be applied without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status" (para. 4).

(b) Religious rights of persons in detention

80. Because the opportunity to practise one's religion, either in private or in public, might easily be restricted by the fact of detention, the Standard Minimum Rules for the Treatment of Prisoners make specific reference to the need for prison authorities to allow prisoners to observe their religion and to have access to a minister of that religion.

81. According to rule 41:

"(1) If the institution contains a sufficient number of prisoners of the same religion, a qualified representative of that religion shall be appointed or approved. If the number of prisoners justifies it and conditions permit, the arrangement should be on a full-time basis.

"(2) A qualified representative appointed or approved under paragraph (1) shall be allowed to hold regular services and to pay pastoral visits in private to prisoners of his religion at proper times.

"(3) Access to a qualified representative of any religion shall not be refused to any prisoner. On the other hand, if any prisoner should object to a visit of any religious representative, his attitude shall be fully respected." In addition, rule 42 provides "So far as practicable, every prisoner shall be allowed to satisfy the needs of his religious life by attending the services provided in the institution and having in his possession the books of religious observance and instruction of his denomination".

82. In this regard, one has to take into account that "[t]he status of religious representatives within prison systems can vary from country to country. In some jurisdictions, such representatives may not be allowed any access to prisons. In other jurisdictions, the religious representative or chaplain is second in authority only to the director within the prison." The Special Rapporteur would also like to emphasize that "[t]he international instruments make it clear that all prisoners are entitled to have access to a qualified religious representative." Moreover, "[i]n some systems, only representatives of the main religion in the country are allowed access to prisons. Prisoners of minority religions are not allowed to observe the requirements of their faith." However, "[t]his is in breach of the international instruments. Prisoners should not be obliged to consult a minister of religion if they do not wish to do so." [Office of the United Nations High Commissioner for Human Rights, Human Rights and Prisons: A Manual on Human Rights Training for Prison Officials (United Nations publication, Sales No. E.04.XIV.I), Professional Training Series No. 11, 2004, chap. 20 - Religion, p. 122.]

(c) Religious rights and persons deprived of their liberty in the context of an armed conflict

83. The Geneva Convention relative to the Treatment of Prisoners of War and the Geneva Convention relative to the Protection of Civilian Persons in Time of War, as well as Additional Protocols I and II to the Geneva Conventions provide for an obligation to respect the religion and religious practices of persons deprived of their liberty in the context of an armed conflict, including prisoners of war, interned persons and other types of detainees. This includes the freedom to practise one's religion, the access to clergy, and the prohibition of discrimination on the basis of religion. [See, inter alia, article 3 common to the four Geneva Conventions: articles 34 and 35 of the Third Geneva Convention; articles 76, 86 and 93 of the Fourth Geneva Convention; article 75, paragraph 1, of Additional Protocol I and articles 4 and 5 of Additional Protocol II.]

84. The Special Rapporteur also notes that "[S]tate practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts." [Jean-Marie Henckaerts et al., Customary International Humanitarian Law, Volume I: Rules, International Committee of the Red Cross (Cambridge: Cambridge University Press, 2005), page 450.]

3. Training of personnel of detention facilities and complaint mechanisms

85. A person in custody finds him or herself in a situation of enhanced vulnerability and can therefore be an easy target for persecution. Prison authorities are given total control over the most basic activities of the inmates, from the time they will sleep to what they will eat, and how they will be able to exercise their right to freedom of religion or belief.

86. The Special Rapporteur regrets that, in certain countries, the question of freedom of religion or belief is either neglected or simply not addressed during the training of persons in charge of prisoners. Therefore, she would like to emphasize that it is crucial need to provide the personnel of detention facilities with adequate training, raising awareness and enhancing their sensitivity about their duty to promote and respect international human rights standards for the treatment of prisoners, in particular the right to freedom of religion.

87. Moreover, because of the coercive nature of these institutions, States should ensure that detention facilities are the object of intense public scrutiny in order to prevent any potential abuse and put in place effective complaints mechanisms. [See ICCPR, art. 2; Convention against Torture and other Cruel Inhumane or Degrading Treatment or Punishment, art. 13; Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, principle 33.] Anyone whose rights and freedoms, including the freedom of religion or belief, have been violated has the right to an effective remedy, determined by a competent court. Every prisoner shall have the right to make a complaint regarding his or her treatment and to have it dealt with promptly and, if requested, confidentially. If necessary, the complaint may be lodged on behalf of the prisoner by his or her legal representative or family. [Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, principle 33; Standard Minimum Rules for the Treatment of Prisoners, rule 36.]

4. Conclusions

88. The Special Rapporteur reiterates that, as a principle, no one should be imprisoned because of his or her religious beliefs or the exercise of his or her right to freedom of religion or belief. Moreover, a person's deprivation of liberty may not include deprivation of his or her right to freedom or religion or belief. These standards must be applied to every prisoner regardless of his or her religion or belief and to all detention facilities.

89. The Special Rapporteur also recommends that the principles pertaining to the right to freedom of religion or belief be brought to the attention of the relevant authorities and that issue be heavily stressed during the training of the officers involved. In this regard, the Special Rapporteur recommends that particular attention be given to the publication Human Rights and Prisons: A Manual on Human Rights Training for Prison Officials as well as its three addenda, prepared by the Office of the High Commissioner for Human Rights. [Human Rights and Prisons: A Compilation of Human Rights Instruments concerning the Administration of Justice (United Nations publication, Sales No. E.04.XIV.4), Professional Training Series No. 11, addendum 1, 2004; Human Rights and Prisons: Trainer's Guide on Human Rights Training for Prison Officials (United Nations publication, Sales No. E.04.XIV.6), Professional Training Series No. 11, addendum 2, 2004; Human Rights and Prisons: A Pocket Book of International Human Rights Standards for Prison Officials (United Nations publications, Sales No. E.04.XIV.5), Professional Training Series No. 11, addendum 3, 2004.]

90. The religious beliefs of a detainee should under no circumstances be used by the authorities against the detainee in order, for instance, to extract information from him or her.

91. Finally, the Special Rapporteur would like to stress that the respect of religious freedom has an impact that is not limited to the prison walls. Violations of the religious rights of inmates may also have an important impact outside the prison. This is illustrated by recent events that caused the death of several people following allegations of desecration of the Koran in detention facilities. "

E/CN.4/2006/120, paras. 57-65 (report on the situation in Guantánamo Bay):

"A. Applicable international standards

57. The right to freedom of religion or belief is protected by article 18 of ICCPR and the 1981 United Nations Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. In its general comment No. 22, the Human Rights Committee interprets article 18 to the effect that "persons already subject to certain legitimate constraints, such as prisoners, continue to enjoy their rights to manifest their religion or belief to the fullest extent compatible with the specific nature of the constraint". [Human Rights Committee, general comment No. 22 (1993), CCPR/C/21/Rev.1/Add.4, para. 8.] A person deprived of his or her liberty cannot be deprived of his or her right to freedom of religion or belief. These standards must be applied to every person, regardless of their religion or belief, and in all detention facilities. [In her previous report to the General Assembly (A/60/399), the Special Rapporteur analysed, in the context of her mandate, the international standards applicable to persons deprived of their liberty.]

58. Article 18 (3) of ICCPR provides that "[f]reedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others". [ICCPR, art. 18 (3). See similarly, Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, art. 1 (3) (25 November 1981).] On these limitations, the Committee "observes that paragraph 3 of article 18 is to be strictly interpreted: restrictions are not allowed on grounds not specified there, even if they would be allowed as restrictions to other rights protected in the Covenant, such as national security". [General comment No. 22, supra note 83, para. 8.] Moreover, under article 4 of ICCPR, the right to freedom of religion or belief may in no circumstances be subject to derogation.

59. Finally, the Third and Fourth Geneva Conventions oblige parties to respect the religion and religious practices of persons deprived of their liberty in the context of an armed conflict, including prisoners of war, interned persons and other types of detainees. This includes the freedom to practise one's religion, the access to clergy, and the prohibition of discrimination on the basis of religion. [See, inter alia, article 3 common to the four Geneva Conventions; articles 34 and 35 of the Third Geneva Convention; articles 76, 86 and 93 of the Fourth Geneva Convention; article 75, paragraph 1, of Additional Protocol I and articles 4 and 5 of Additional Protocol II.]

B. Reported human rights allegations

60. The review of a number of official documents and reports as well as information obtained on the basis of interviews reveal that certain interrogation techniques that were especially degrading for members of certain religions were authorized by the United States authorities. [Techniques such as the use of dogs were explicitly authorized as part of the "First Special Interrogation Plan" (pp. 13 and 14) - see in Army Regulation 15-6, Final Report: Investigation into FBI Allegations of Detainee Abuse at Guantánamo Bay, Cuba Detention Facility (1 April 2005, amended 9 June 2005) (The Schmidt Report).] Other treatments which may have been specifically designed to offend the religious sensitivities of the detainees, were repeatedly used by those involved in the custody, interrogation and treatment of detainees (e.g. use of female interrogators, who performed, inter alia, "lap dances during interrogations"). [A technique that the Schmidt Report, supra note 88, found to be authorized (FM 34-52) and approved by SECDEF as mild, non-injurious physical touching. The same report found the rubbing of perfume to have been authorized, as well as leaning over detainees and whispering in their ears that the situation was futile. In addition, the wiping of menstrual blood on a detainee in March 2003 was considered authorized to show the futility of the situation.] It was also reported that these techniques were used before prayer times and that in some cases, detainees were not allowed to wash themselves before and therefore were not able to pray.

61. The list of officially approved interrogation techniques in force today [Secretary of Defense memorandum for the commander, US Southern command of 16 April 2005 on "Counter Resistance Techniques in the War on Terror". See supra, para. 50.] allows for the removal of religious items (e.g. the Holy Koran). This constitutes an impermissible limitation on the right to freedom of religion or belief of detainees.

62. There was particular concern at reports of possible mishandling of religious objects, such as the Holy Koran. The Special Rapporteur on freedom of religion or belief sent a communication on this matter to the Government of the United States on 23 May 2005. The Government reply of 18 August 2005 provided detailed information on the investigations that were conducted following these allegations, as well as on the existing measures and guidelines for the personnel of the detention facilities. As a result of their investigations, the Government indicated that it had identified five confirmed cases of mishandling of the Holy Koran by guards and interrogators, either intentionally or unintentionally, including kicking and stepping on the Holy Koran. [Response of the United States of America, dated 21 October 2005 to the inquiry of the Special Rapporteurs dated 8 August 2005 pertaining to detainees at Guantánamo Bay, p. 21 et seq.]

63. A number of detainees have alleged that they were subjected to forced grooming, including shaving of beards, heads and eyebrows.

64. Further concerns were raised by the removal of a military Muslim cleric from his position at Guantánamo Bay. He later was arrested on suspicion of espionage and held in solitary confinement for 76 days. It has been alleged that he has not been replaced, leaving the Muslim detainees unattended, in violation of the Standard Minimum Rules for the Treatment of Prisoners. [Standard Minimum Rules for the Treatment of Prisoners. Adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977.]

65. Finally, there are also concerns about reports that the United States Government has, either implicitly or explicitly, encouraged or tolerated the association of Islam and terrorism, for example, by interrogating detainees on the extent of their faith in Islamic teachings."

A/64/159, paras. 19-21 and 66:

“19. In the past five years, the Special Rapporteur has received alarming reports about persons being arrested and detained because of their religious beliefs on the basis of discriminatory laws, denial of due process or a strong bias by law enforcement against religious minorities. She has also received worrying reports of alleged violations of the right to freedom of religion or belief of persons who are deprived of their liberty, who find themselves in a situation of enhanced vulnerability and can therefore be an easy target for harassment. The Special Rapporteur has detailed some situations reported under the mandate and the applicable international standards in her report to the General Assembly at its sixtieth session. [See A/60/399, paras. 69-91.]

20. The religious rights of persons deprived of their liberty must be fully respected and protected. There is a real risk that the circumstances of detention, as well as specific policies by prison authorities, may result in undue restrictions of the opportunity of detainees to practise their religion or belief in private or in public. The Human Rights Committee has stressed that persons already subject to certain legitimate constraints, such as prisoners, continue to enjoy their rights to manifest their religion or belief to the fullest extent compatible with the specific nature of the constraint. [Ibid., para. 8.] Detainees should also be allowed access to qualified representatives of any religion, while they should not be obliged to consult a minister of religion if they do not wish to do so. Furthermore, the religious beliefs of a detainee should under no circumstances be used by the authorities against the detainee in order, for instance, to extract information from him or her.

21. Treating all persons deprived of their liberty with humanity and with respect for their dignity is a fundamental and universally applicable rule which must be applied without distinction of any kind, such as religion. The Special Rapporteur would like to emphasize that the dangers of discrimination, either in an institutionalized form or through discriminatory practices, become much greater in the closed conditions of a detention facility. The relevant authorities have a responsibility to ensure that there is no discrimination against any prisoner or staff member belonging to a minority group. In order to prevent any potential abuse, States should ensure that detention facilities are the object of intense public scrutiny and put in place effective complaints mechanisms. [...]

66. With regard to persons deprived of their liberty, the Special Rapporteur would like to emphasize that it is crucial to provide the personnel of detention facilities with adequate training and raise their awareness about the duty to promote and respect international human rights standards for the treatment of detainees, in particular with regard to their right to freedom of religion or belief. The State needs to bring the applicable standards to the attention of the relevant authorities and personnel of detention facilities and to enhance their sensitivity that the effects of violations of the religious rights of detainees may not be confined to the detention facilities but can also impinge on the overall climate of religious tolerance, even at the international level.”

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