Bills for Abolition Of Mandatory Death Penalty, Imprisonment For Natural Life And The Giving The Courts Power To Review Those Currently On Death Row Passed on 3/4/2023 - MADPET

 

 

Media Statement – 3/4/2023

Bills for Abolition Of Mandatory Death Penalty, Imprisonment For Natural Life And The Giving The Courts Power To Review Those Currently On Death Row Passed on 3/4/2023

The Dewan Rakyat has passed it, and now we wait for the Senate and the King

MADPET (Malaysians Against Death Penalty and Torture) welcomes the Dewan Rakyat’s passing of Abolition of Mandatory Death Penalty Bill 2023 in the Malaysian Parliament on 3/4/2023. This restores sentencing discretion to the judiciary, who now will have the option of imposing either the death penalty or the sentence of “imprisonment for a term of not less than thirty years but not exceeding forty years and if not sentenced to death, shall also be punished with whipping of not less than twelve strokes”.

The Bill also will amend “imprisonment for natural life” with the words “imprisonment for a term of not less than thirty years but not exceeding forty years”. This ends imprisonment until one die.

One must remember that the purpose of criminals sentencing to ensure just punishment of the perpetrator, and rehabilitation for social reintegration of the offenders. Imprisonment for natural life makes it impossible to fulfil the obligation of rehabilitation and reintegration.

Life imprisonment was also considered a “secret death penalty,” by Pope Francis as stated in his 2020 encyclical “Fratelli Tutti” (On Fraternity And Social Friendship).

MADPET also welcomes the passing of the Revision Of Sentence Of Death And Imprisonment For Natural Life (Temporary Jurisdiction Of The Federal Court) Bill 2023 the Federal Court to review the sentence of death and imprisonment for natural life imposed on a convicted person following the abolition of the mandatory death penalty.

This will mean that the about 840 of the 1,320 on death row, who have completed all appeals will have their death sentence reviewed by the Federal Court. Likewise, those that are currently serving natural life imprisonment.

For, the others on death row or sentenced to natural life imprisonment, the appellate courts can now deal with it as the Abolition of Mandatory Death Penalty Bill 2023 states they ‘…shall be sentenced in accordance with the provisions of the principal Act as amended by this Act even though the offence was committed before the date of coming into operation of this Act.’. This will abolish mandatory death penalty and natural life imprisonment sentences in the future.

Family Members of Murder Victims

We saw some media reports that stated a few family members of murder victims opposed the abolition of the mandatory death penalty. It must be pointed out that many other victims do support the abolition of the death penalty. The international group, Murder Victims’ Families for Human Rights (MVFHR) is one such example that seeks the abolition of the death penalty.

One family member, allegedly said ‘"If the mandatory death penalty is abolished, criminals will no longer be scared.’ (Star, 4/4/2023). It must be pointed out that even with the mandatory death penalty, the number of murders and drug trafficking continued to be high, if not rising, a proof that death penalty failed to act as a deterrent.

Compensation for Victims

The government is considering this but it must be pointed out that it is already provided for in the Criminal Procedure Code. Section 426 states ‘….the Court before which an accused is convicted of an offence shall, upon the application of the Public Prosecutor, make an order against the convicted accused for the payment by him, or where the convicted accused is a child, by his parent or guardian, of a sum to be fixed by the Court as compensation to a person who is the victim of the offence committed by the convicted accused in respect of the injury to his person or character, or loss of his income or property, as a result of the offence committed… (1B) Where the person who is the victim of the offence is deceased, the order of compensation shall be made to a representative of the deceased person..’.

Unfortunately, a perusal of reported cases, shows that the Public Prosecutor seldom applies for compensation for victims, including murder victims’ family. In some cases, they just apply for prosecution cost.

Section 426 also states, ‘…the order for payment shall not prejudice any right to a civil remedy for the recovery of any property or for the recovery of damages beyond the amount of compensation paid under the order….’ This means that victims of murder or other crimes can still commence a civil court action to claim damages.

Altantuya Sharibu’s family did just that, and the court found that not just convicted murderers Sirul and Azilah, but also political analyst Abdul Razak Baginda liable to their claim of unlawful killing of the deceased (Altantuya). The government was vicariously liable as Sirul and Azilah were police officers. They were ordered to pay cost and ‘…RM5 million in general, aggravated and exemplary damages to the deceased's family,”(Edge Markets, 16/12/2022).

MADPET urges the Malaysian Senate to also speedily pass the Abolition of Mandatory Death Penalty Bill 2023 and the Revision Of Sentence Of Death And Imprisonment For Natural Life (Temporary Jurisdiction Of The Federal Court) Bill 2023, so that it can be put in force as soon as possible.

MADPET calls on the Public Prosecutor to diligently apply for compensation from the convicted in criminal trials for victims of crime, including family members of murder victims.  

MADPET reiterates the call for the total abolition of the death penalty and corporal punishment of whipping.

Charles Hector

For and on behalf of MADPET (Malaysians Against Death Penalty and Torture)

 

See also earlier MADPET Statements

Media Statement – 28/3/2023

Removing Mandatory Death Penalty And MandatoryLife Imprisonment Is Just, And Increases Chances That Those Who Ordered Or‘Paid’ For Death Will No Longer Escape Justice

Media Statement – 22/3/2023

Delay In The Abolition Of The Mandatory Death Penalty And The Death Penalty By The PH-Led Government Disappointing

Table and pass the Bills in this Parliamentary Session (13/2 – 4/4/2023)

 

Dewan passes amendments to abolish mandatory death penalty

By TARRENCE TAN, RAHIMY RAHIM and MARTIN CARVALHO Nation

Monday, 03 Apr 2023 4:45 PM MYT
 

KUALA LUMPUR: Amendments in relation to the abolition of the mandatory death penalty have been approved by the Dewan Rakyat.

The amendments were introduced via the tabling of the Abolition of Mandatory Death Penalty Bill 2023 for the second and third reading by Deputy Minister in the Prime Minister’s Department (Law and Institutional Reform) Ramkarpal Singh in Parliament on Monday (April 3).

The Bill was passed via a voice vote after 10 MPs debated on it, followed by a winding-up speech by Ramkarpal.

ALSO READ: Keep mandatory death sentence for brutal crimes, say victims' grief-stricken kin

Ramkarpal said the abolition of the mandatory death penalty did not mean that capital punishment was being totally abolished.

"The death penalty is still maintained in certain cases. We need to have confidence in the judiciary in deciding based on their discretion," said Ramkarpal.

The Bill also proposed to allow judges the option to impose jail terms of up to 40 years instead of the death penalty.  - Star, 3/4/2023


Keep mandatory death sentence for brutal crimes, say victims' grief-stricken kin


By RAHIMY RAHIM, TARRENCE TAN and MARTIN CARVALHO Nation


Monday, 03 Apr 2023 3:03 PM MYT

 

KUALA LUMPUR: The mother of a rape and murder victim has made a tearful plea to the government to retain the mandatory death penalty.

Alice Tan Siew Ling, whose 17-year-old daughter was raped and murdered in 2009, broke down during a press conference in the Parliament lobby on Monday (April 3).


"She died after being stabbed in the neck," Tan said in urging the Dewan Rakyat not to pass the amendments abolishing capital punishment as scheduled on Monday.

At the same press conference, Noor Hakimi Abdul Halim said his friend, a security guard in Sungai Petani, Kedah, was also a murder victim.

"He was attacked by three assailants and murdered with a parang.

"If the mandatory death penalty is abolished, criminals will no longer be scared.

"Please think about the families of the victims," he said.

Lawyer Christina Teng, who was also present, said the mandatory penalty should be retained for heinous crimes involving the loss of life.

She said many judges preferred not to mete out hanging sentences after being given the discretion to impose a non-lethal penalty.

She said that even life imprisonment usually did not go beyond 30 to 40 years of jail time and justice would not be served on those who had committed abominable crimes.

"A brutal killer who has raped and murdered will (eventually) be released (if the death penalty is abolished).

"(Jail) is not a serious enough punishment for heinous crimes.

"We ask the government to focus on cleaning up the justice system and address the many loopholes and weak enforcement instead of abolishing the mandatory death sentence," she said.

She also appealed to the government to put the interests of victims and their families before consideration for the perpetrators.

She said a petition under the non-governmental organisation Protect Malaysia has garnered almost 100,000 signatures in support of keeping the death penalty, and added that the government should not rush into abolishing it.

On March 27), Minister in the Prime Minister's Department (Law and Institutional Reform) Datuk Seri Azalina Othman Said tabled the Abolition of Mandatory Death Penalty Bill 2023 for first reading, along with revisions to the death sentence and imprisonment for natural life. - Star, 3/4/2023

Sabri, Migrant Worker Wrongfully Whipped Before Appeal Heard - Statement of 45 Groups- 19/7/2022

Media coverage

https://focusmalaysia.my/indonesian-migrant-worker-in-sabah-wrongfully-whipped-before-appeal-heard/

Media Statement (45 GROUPS) – 19/7/2022

Sabri, Migrant Worker Wrongfully Whipped Before Appeal Heard

We the 45 undersigned groups and organizations are shocked that Indonesian migrant worker Sabri bin Umar was whipped at the Tawau Prison on 23/6/2022 despite there being an appeal at the High Court regarding his conviction/sentence by the Session Court which have yet to be heard. The law in Malaysia clearly states that the sentence of whipping shall not be carried out until the appeal is heard and determined.

Convicted Cannot Be Whipped Until Appeal Heard And Decided

Section 311 of the Malaysian Criminal Procedure Code states,  ‘Except in the case of a sentence of whipping (the execution of which shall be stayed pending appeal), no appeal shall operate as a stay of execution, but the Court below or a Judge may stay execution on any judgment, order, conviction or sentence pending appeal, on such terms as to security for the payment of any money or the performance or non-performance of any act or the suffering of any punishment ordered by or in the judgment, order, conviction or sentence as to the Court below or to the Judge may seem reasonable.

For any other sentence, other than whipping, the convicted is required to file an application for stay of execution pending appeal.

Sabri ‘Wrongly’ Convicted Then Wrongly Whipped On 23/6/2022 Before Appeal Heard

On 19/4/2022, the Session Court convicted Sabri for committing the offence pursuant to Section 6(1)( c) Immigration Act 1959/63, and sentenced him to 11 months imprisonment and 5 whippings. He was unrepresented at that time.

Section 6(1)( c) Immigration Act (1) states that. ‘No person other than a citizen shall enter Malaysia unless- (a)…(c) he is in possession of a valid Pass lawfully issued to him to enter Malaysia; or..’

As such, a documented migrant worker like Sabri bin Umar can never reasonably be found guilty of this Section 6(1)( c) Immigration Act offence, for he was a documented migrant worker and his entry and presence in Malaysia were in accordance to law.

A perusal of court documents revealed that the Immigration documents tendered to the court was FALSE, as it stated that there was no records of entry and exit for Sabri. It failed to disclose the truth, that Sabri was indeed a documented migrant worker for the past about 7 years, and that he was in the employ of one Fu Yee Corporation Sdn Bhd in Tawau, Sabah, Malaysia. His work permit also had been renewed by the Immigration Department in 2022, and should reasonably be valid for a year.

In fact, prosecution had also failed in their duty to properly investigate before charging Sabri. An investigation would have revealed that Sabri was documented worker who cannot be charged for a Section 6(1)( c) Immigration Act. It must be pointed out that Sabri was arrested at his workplace on 5/4/2022. There also seem to be no charges against the employer, Fu Yee Corporation, for harboring or employing an undocumented worker.

The appeal to the High Court was filed on or about 22/4/2022, and this appeal has not yet been heard and decided upon. Sabri was wrongly whipped on 23/6/2022.

Migrant Workers and employers that violate worker rights

For a migrant worker, even after his employment agreement comes to an end, the employer has the duty or responsibility to ensure safe return back to the migrant’s country of origin. Hence, even if the immigration work permit/pass that allows for legal presence ends, an employer has the duty to keep the migrant worker safe, including making needed application for pass/permits to allow legal presence in Malaysia until employer can arrange the return to home country.

Some ‘bad’ employers do sometimes wrongfully terminate, and quickly, even forcibly, send migrant workers back to countries of origin. This denies migrant workers access to avenues of justice to pursue claims of wrongful termination and reinstatement, claims for wages/monies still owing by employers to workers and other legal claims. Unfortunately, in Malaysia many of the avenues of justice including labour departments, industrial relation departments and even courts require physical attendance of the complainant/claimant, failing which it assumes that the migrant worker is no longer interested and the process to ensure justice ends.

Some other worse employers may just cause the cancelation of permits, and then may even cause or facilitate migrants to be arrested, charged and convicted for being undocumented, and then deported.

In the case of Sabri Bin Umar, who is also a union member of the Sabah Timber Industry Employees Union (STIEU), who claims that he was wrongfully terminated by his employer on 4/4/2022, and then was arrested by police on 5/4/2022 and was detained until charged and convicted on 19/4/2022. However, Sabri bin Umar did manage to file a wrongful dismissal claim in the Industrial Relations Department on 19/4/2022 seeking reinstatement, whereby this process is ongoing.

The employer, who knew that Sabri was not an undocumented worker failed to bring to the attention of the police, prosecutors and court this material fact, which reasonably would have meant Sabri would not be charged, let alone be convicted for being illegally in Malaysia under Section 6(1)( c) Immigration Act. Fu Yee Corporation should be doing the needed to end the current serious miscarriage of justice.

Whipping, a Corporal Punishment must be abolished

Sabri’s case has come to light, but there is concern about whether others have been whipped before their appeal is heard and disposed of. Whipping is a corporal punishment that inflicts serious physical and psychological injury, where victims are known to pass out even before the full sentence is carried out.

The Immigration Act 1959/63 was amended and as of August 2002, and the sentence of whipping was introduced for use against undocumented migrants. According to Prisons Department records, 47,914 foreigners were found to have violated the Immigration Act from 2002 to 2008. Of these, 34,923 were whipped.

The Malaysian Bar is unequivocally and unreservedly is against all forms of corporal punishment, including caning or whipping, in accordance with the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“UNCAT”), and international human rights norms. SUHAKAM (Malaysian National Human Rights Commission) has also long recommended that the Government of Malaysia prohibit the use of corporal punishment of caning and whipping.

Therefore, we 

a)    Call for Malaysia to immediately apologize and do the needful to ensure justice be done for the wrongful or illegal whipping of Sabri Bin Umar before his criminal appeal/s is heard and determined, and that actions be taken against those responsible;

b)   Call for the immediate abolition of whipping, a form of corporal punishment in Malaysia.

c)    Call on Malaysia to immediately ratify the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Charles Hector

Apolinar Z Tolentino, Jr.

 

For and on behalf of the 45 organisations listed below

 

ALIRAN

MADPET (Malaysians Against Death Penalty and Torture)

Building and Wood Workers International (BWI) Asia Pacific Region

WH4C (Workers Hub For Change)

Asosasyon ng mga Makabayang Manggagawang Pilipino Overseas (AMMPO) in Malaysia

Black Women for Wages for Housework

Citizens Against Enforced Disappearances, CAGED

Civil Society Action Committee

Domestic Caretaker Union (DCU), Taoyuan City. Taiwan

Federasi SERBUK, Indonesia

Federasi Serikat Buruh Kehutanan Perkayuan dan Pertanian Serikat Buruh Sejahtera Indonesia (HUKATAN)

Federation of Indonesia Workers’ Awakening (FKUI)

Haiti Action Committee

Hong Kong Federation of Asian Domestic Workers Unions, Hong Kong

International Domestic Workers Federation (IDWF)

International Women's Rights Action Watch Asia Pacific, Malaysia

Japan Innocence and Death Penalty Information Center (jiadep.org)

Koalisi Buruh Migran Berdaulat, Indonesia

Labour Law Reform Coalition(LRRC), Malaysia

Malay Forest Officers Union (MFOU), Malaysia

Malaysian Trade Union Congress Sarawak (MTUC – Sarawak), Malaysia

Migrant Care, Indonesia

Migrant Forum in Asia (MFA)

National Union of Transport Equipment & Allied Industries Workers, Malaysia

Network of Action For Migrants in Malaysia(NAMM)

North South Initiative(NSI)

Persatuan Pekerja Rumah Tangga Indonesia Migran (PERTIMIG), Malaysia.

Persatuan Sahabat Wanita Selangor (PSWS), Malaysia

Sabah Plantation Industry Employees Union (SPIEU)

Sabah Timber Industry Employees Union (STIEU)

Sarawak Bank Employees Union (SBEU), Malaysia

Sarawak Dayak Iban Association

SETEM Catalunya,Spain

Singapore Anti Death Penalty Campaign

Scalabrini International Migration Network (SIMN)

Sedane Labour Resources Centre, Indonesia

South Africa Domestic Service and Allied Workers Union (SADSAWU), South Africa

Teoh Beng Hock Trust for Democracy

The Cross-Regional Center for Refugees and Migrants, Lebanon

The William Gomes Podcast, United Kingdom

Timber Employees Union of Peninsular Malaysia (TEUPM)

TIEUS (Timber Industry Employee Union Sarawak)

United Domestic Workers of the Philippines , Philippines

Union of Forestry Employees Sarawak (UFES), Malaysia

Women of Color/ Global Women’s Strike

 

 

 

29,759 migrants 'caned' in Malaysia between 2005-2010 (9/3/2011)

AMNESTY INTERNATIONAL PRESS RELEASE

11 March 2011

Malaysia: Government Reveals Nearly 30,000 Foreigners Caned

Malaysia should immediately halt the judicial caning of refugees and migrants, Amnesty International said after the government disclosed that almost 30,000 foreigners had been caned in five years.

In a response to a parliamentary question on 9 March, Home Minister Hishammuddin Hussein disclosed that Malaysia had caned 29,759 foreigners between 2005 and 2010 for immigration offences alone.

 “The government’s figures confirm that Malaysia is subjecting thousands of people to torture and other ill-treatment each year,” said Sam Zarifi, Asia Pacific director at Amnesty International. “This is a practice which is absolutely prohibited under international law, no matter what the circumstances.”

“As a first step, the Malaysian government has to immediately declare a moratorium on this brutal practice.”

Amnesty International also called for a complete abolition of all forms or corporal punishment, which constitutes torture or other ill-treatment.

In December 2010, Amnesty International published an in-depth investigation into judicial caning in Malaysia. In each of the 57 cases it examined, Amnesty International found that the caning amounted to torture, as the authorities had intentionally inflicted severe pain and suffering through the punishment of caning.

While most countries have abolished judicial caning, Malaysia has expanded the practice. Parliament has increased the number of offenses subject to caning to more than 60.

Since 2002, when Parliament amended the Immigration Act 1959/63 to make immigration violations such as illegal entry subject to caning, tens of thousands of refugees and migrant workers have been caned.

At least 60 per cent of the 29,759 foreigners caned were Indonesians, according to Liew Chin Tong, the parliamentarian who submitted the question. In March 2010, Amnesty International documented how unchecked abuses by unscrupulous labour agents led to many migrant workers losing their legal immigration status and thus being subject to caning.

Refugees are also caned for immigration violations in Malaysia. Since Malaysia has not yet ratified the UN Refugee Convention, asylum seekers are often arrested and prosecuted as illegal migrants. Burmese refugees in Malaysia have told Amnesty International how they live in fear after being caned.

“Malaysia is subjecting thousands of people from other Asian countries to torture and other ill-treatment,” said Sam Zarifi. “Indonesia, which chairs the Association of South East Asian Nations and its human rights Commission this year, must press Malaysia to stop caning their citizens.”

Public Document

****************************************

For more information please call Amnesty International's press office in London, UK, on +44 20 7413 5566 or email: press@amnesty.org

International Secretariat, Amnesty International, 1 Easton St., London WC1X 0DW, UK

Time to declare commitment to end torture in Malaysia -Ratify Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

It is time that Malaysia say no to all forms of torture - and a strong position that it will act against all those that do torture people.

This would a clear declaration of the government that will no longer tolerate torture perpetrated by the police, MACC officers, RELA,...

Malaysia's Human Rights Commission have been asking the Malaysian government to ratify the Convention Against Torture, as a first step of it taking a public stance that it will no longer tolerate torture in Malaysia...

And, whipping is certainly a cruel, inhumane and degrading form of punishment that must be abolished...

The Human Rights Commission of Malaysia (Suhakam) has urged the Government and the relevant authorities to review the convention against torture and other cruel or degrading treatment of people.

It viewed whipping as cruel, inhumane, degrading and contrary to the human rights principle.

“It is unfortunate that the Government has not ratified the convention even though Suhakam had repeatedly urged it to do so,” it said in a statement yesterday. - Star, 30/8/2009, Do away with degrading punishment, says Suhakam

Islamic Declaration of Human Rights also have a provision with regard to torture...

VII Right to Protection Against Torture

No person shall be subjected to torture in mind or body, or degraded, or threatened with injury either to himself or to anyone related to or held dear by him, or forcibly made to confess to the commission of a crime, or forced to consent to an act which is injurious to his interests.

Malaysia has yet to ratify the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Adopted and opened for signature, ratification and accession by General Assembly resolution 39/46
of 10 December 1984

entry into force 26 June 1987, in accordance with article 27 (1)

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:

PART I

Article 1

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.

Article 2

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 in stability 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.

Article 3

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 consistent pattern of gross, flagrant or mass violations of human rights.

Article 4

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.

Article 5

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 I of this article.

3. This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law.

Article 6

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 I 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.

Article 7

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.

Article 8

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 Parties, 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.

Article 9

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 I of this article in conformity with any treaties on mutual judicial assistance that may exist between them.

Article 10

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 person.

Article 11

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.

Article 12

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.

Article 13

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-treatment or intimidation as a consequence of his complaint or any evidence given.

Article 14

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.

Article 15

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.

Article 16

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 I, 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.

PART II

Article 17

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 recognized 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. Ieast 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.

Article 18

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.

Article 19

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 I of this article.

Article 20

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 Commission 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 I to 4 of th is article s hall be con fidential , 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.

Article 21

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 ofthis Convention, it may, by written communication, bring the matter to the attention of that State Party. Within three months afler 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 an ad 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.

Article 22

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 I 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 reliefto 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 SecretaryGeneral, unless the State Party has made a new declaration.

Article 23

The members of the Committee and of the ad hoc conciliation commissions which may be appointed under article 21, paragraph I (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.

Article 24

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.

PART III

Article 25

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.

Article 26

This Convention is open to accession by all States. Accession shall be effected by the deposit of an instrument of accession with the SecretaryGeneral of the United Nations.

Article 27

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 onthe thirtieth day after the date of the deposit of its own instrument of ratification or accession.

Article 28

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 I of this article may, at any time, withdraw this reservation by notification to the Secretary-General of the United Nations.

Article 29

1 . Any State Party to this Convention may propose an amendment and file it with the Secretary-General of the United Nations. The SecretaryGeneral 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 an d 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 SecretaryGeneral 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 I 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.

Article 30

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 thc 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 Con vention or accession thereto, declare that it does not consider itself bound by paragraph I of this article. The other States Parties shall not be bound by paragraph I 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.

Article 31

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.

Article 32

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.

Article 33

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.