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FACSIMILE

rr o:

Mr. T. L Early, Section Registrar
European Court of Human Rights
Council 0 f Europe
67075 Strasbourg Cedex
France

From:

Mara Bustelo, orc
Chief, Special Proc
OHCHR, Geneva

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FaxN°: +410229179006

Fax N°:
Tel N°:

+33 (0)3 88412730
+33 (0)3 8841 20 18

Tel N°: +410229179235

Date:

25 November 2011

Number of pages including this one

Subject:

Letter from the Special Rapporteur on the question of torture and other cruel,
inhuman or degrading treatment or punishment

4

Please find attached a letter from the Special Rapporteur on the question of torture
and other cruel, inhuman or degrading treatment or punishment, Mr. Juan E. Mendez in the
case of Barbar Ahmad and Others v. The United Kingdom for the Court's consideration.
B est regards.

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NATIONS UNIES

UNITED NATIONS

HAUT COMMISSARIAT DES NATIONS UNIES
AUX DROITS DE L'HOMME

OFFICE OF THE UNITED NATIONS
I-IIGH COMMISSIONER FOR HUMAN RIGHTS

PROCEDURES SI'ECIALES DU
CONSEIL DES DROITS DE L'HOMME

SPECIAL PROCEDURES OF THE
HUMAN RIGHTS COUNCIL

Mandate of the Special Rapporteur on the question of torture and other el'tlcl, inhuman or degrading treatment or punishment
Telerax:(41~12)-917

9006

reh~b'Tammes: UNATJONS. GENEVE

Telex: 41 29 Ci2
Tell..1Jhone: +41 (0)22.917.9160
Internet: www.ohchr.org
E~mnil: sr-loTiure(il!Ohchr ort.!

REFERENCE:

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Address:
PaJais des Nations
CI'H21 1 GENEVE 10

also 214 (53-21)

25 November 2011
Dear Mr. T L Early,
In my capacity as United Nations Special Rapporteur on the question of torture and other
cruel, inhuman, or degrading treatment or punislnnent (SR on Torture) pursuant to General
Assembly resolution 60/251 and to Human Rights COUl1ci1 reso1ntion 16/23, I have drafted a
submission on a voluntary basis to the European Court of Human Rights (ECHR) in the case of
Barbar Ahmad and Others v. The United Kingdom for the Cotni's consideration without
prejudice to the privileges and inmmnities ofthe United Nations and its experts and officials.
It has recently corne to my attention that the issue of solitary confinement, a practice of
central concern to the mandate of the SR on Torture, has arisen before the Court in cOlmection to
the present case. I ac1G1ow1edge however, that the period for third party observations in the
present case closed in December 2010, and that the case is in the final stages of consideration by
the Court, and therefore will keep my snbmission concise.

Pnrsuant to UN Humar1 Rights Council 16/23 (AlHRC/RESI16/23), I act under the aegis
of the Human Rights Counsel without remuneration as an independent expert within the scope of
my mandate which enables me to seek, receive, examine and act on infonnation from numerous
sources, inclnding individuals, regmding issues and alleged cases concerning torture and or other
cmel, inhlnnar1 or degrading treatment or punis1nnent. Where necessary, in response to
complaints and other connnunications received, I conduct field visits to relevant States a!1d
engage in a dialogue with States to detern1ine if violations have occUlTed and propose remedies.
The communications with States also seek to ensure that every effori is taken to root out the
practice of tOliure worldwide. The working methods of the SR on Torture ensure confidentiality
of the specific content of complaints and a!1y follow-up conU1mnications until sllch time as they

Mr. T. L Ear·ly, Section Registrar
European Court of Humar1 Rights
Council of Europe .
67075 Strasbourg Cedex
France
Tel: +33 (0)3 88412018
Fax: +33.(0)388412730

are reflected in official reports submitted to the UN Human Rights Councilor when mandate
holders detern1ine that the specific circumstances require action to be taken before that time.
This confidentiality is of central importance to my work because of the nature of the allegations
and potential for reprisals.
However, as it is relevant to the present case before the Court, I write to aclmowledge that
I have received complaints concerning detainees held at the ADX Florence prison facility as a
result of terrOlism-related convictions.· These complaints have referenced, inter alia, the
restrictive nature of the detention regime at ADX Florence, including the use of special
administrative measures and solitary confinement for prolonged and indefinite periods.
More broadly, I am engaged with the international community on the issue of solitary
confinement as highlighted in my most recent report to the UN General Assembly (U.N. Doc.
A/66/268, 5 August 2011). This report is a thematic study and does not address solitary
confinement as it is practiced in anyone State. I published this repOli in an effort to generate
guidelines to govern State practice in this area, the most basic of which calls for a complete ban·
on solitary confinement, pmiicularly when used for a prolonged or indefinite period, and
identifies the very limited circumstances in which solitary confinement may be practiced.
My principal concern is the effect of the social isolation and sensory deprivation that is
characteristic of most solitmy confinement regimes. Not only is solitary confinement m1tithetical
to the rehabilitation of offenders 8!1d facilitation of their reintegration into society, but medical
studies m1d 8!1ecdotal evidence has additionally shown that this fo= of social isolation and
sensory deprivation C8!1 cause serious hmm to the physical 8!1d mental state of a detainee, even
after a short period of time (see U.N. Doc. N66/268, paras. 62-65). The negative impact on
detainees under a solitmy confinement regime is severe because solitary confinement allows
individuals to be confined to their cells for 22 to 24 hours a day, without any me8!1i:ngful social
contact and deprived of most, if not all, physical and social stimuli (see U.N. Doc. N66/268
para. 25). I mn particularly concerned with the use of solitm·y confinement as a punishment,
during pre-trial detention, indefinitely or for a prolonged period, for juveniles or persons with
mental disabilities, in which cases it can undoubtedly m110unt to torture or other crnel, inhuman
or degrading treatment or punislunent.
For the above reasons, as also asserted by fo=er SR's on Torture, solitary confinement
should only be used in exceptional circumst8!1ces, m1d with appropriate procedural 8!1d judicial
safeguards in place(E/CN.4/1999/61, para. 394, 8!1d E/CN.4/2003/68, para. 26 (m)). Moreover,
prolonged solitary confinement may itself amount to prohibited iII-treatment or torture. This
view is broadly supported by my own research 8!1d the jurisprndence of the regional humm1
rights bodies, 8!1d universal hum8!1 rights mech8!1isms (see U.N. Doc. N66/268, paras. 27-39).
Moreover, solitary confinement that is either indefinite or prolonged, as I have defined as
exceeding 15 consecutive days in length, should be subject to an absolute prohibition because of
the severe pain m1d suffering that it inflicts. The Council of Europe's Committee for the
Prevention of Torture and Inhum8!1 or Degrading Treatment or Punishment.(CPT) has called for
a similar bm1 on solitary confinement when used for an extended period and recommends that if
States employ the practice, then they do so only under exceptional circumstances, for the shmiest
period possible and always subject to judicial oversight (see CPT/Inf (2011) 28, paras. 56-57, 10
November 2011).
Alongside this repmi, I am engaged with numerous states, including the United States of
America, on the issue of solitary confinement. For inst8!1ce, as widely reported in the media, I

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am engaged in a dialogue with the United States Govemment on allegations of the
prolonged solitary confinement of Mr. Bradley Manning, a United States army soldier charged
with the unauthOlized disclosure of classified infonnation. The United States Government
granted me pennission to intervi ew Mr. Manning but did not agree to an unmonitored
conversation. Under such tenns, both Mr. MaIming and I declined the offer. In Aplil 2011, Mr.
Maiming was transfened to an al1ny prison at Fort Leavenworth, Kansas, where he is now held
under conditions that do not include solitary confinement.
It is my understanding that prolonged and indefinite solitary confinement is applied in
United States' plisons in a vaIiety of ways and for different pnrposes. In pmiiculaI', it is applied
to inmates accused or convicted of tenOlism-related offenses, both during pre-tlial detention and·
post-conviction. For these inmates, solitmy confinement is often supplemented with "special
administrative measures" (SAMs) that fmiher restrict contacts of these defendants with family
and lawyers. Both solitary confinement and SAMs seem to be imposed without any relation to
the behaviour of the inmate or his obSerVaI1Ce of prison discipline. Although these restrictions are
imposed invoking the need to prevent acts of tenorism by others, no particular showing is made
of specific reasons for such measures. hldeed, it appears that imnates have limited or no
opportl111ity to challenge those reasons or to do anything that would allow them to "step down"
from SAMs or solitmy confinement.

I understmld that in the present case; the Applicant asserts that his possible extradition to
the United States may violate the legal principle of non-refoulement under Article 3 of the
European Convention on Human Rights. Non-refoulement requires States to act affinnatively to
prevent the extradition of detainees to States where torture or other cHlel, inhuman, or degrading
treatment or punishment are practiced. Without causing prejudice to the Court's fmdings, I am
concerned that extTadition of a detainee to a State that practices prolonged solitary confinement
with limited recourse would violate Article 3.
As SR on Torture I will continue to engage with States mld other bodies on the matter of
solitmy confinement.

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Again, this letter is provided without prejudice to, and should not be considered as a
waiver, express or implied, of the privileges and ilmmmities of the United Nations, its officials
and expelis on missions, pursuant to the 1964 Convention on the Plivileges and Immunities of
the United Nations.

,

Sincerely,

Juan E. Mendez
Special RappOlieur on torture and other cruel,
inhuman or degrading treatment or punishment

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RAPPORT DE RESULTAT DE LA COMMUNICATION

25. NOV. 2011 11:21)
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TRANSMIS/MEMORISE: 25. NOV. 2011

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/To:

FACSIMILE
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T. L Early~ Seotion Registrar
European. Court oIHurnan Rights
Council of Europe
67075 Sttasbour-g Cede"!.:

!Fro=.:

Mara. Bustelo, Ole
Chief;. Special Proc
OHCHR" Geneva

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France

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Tel N°:

pate,
Subject:

'i 33 (0)3 88.41 2730
+33 (0)3 8841 2018

25 Nov=ber 2011

ax N"; +41 022 917 90 06
freI N": +41 0229179235
NUlD,"ber of pages lnclu.ding this

OIJ,e

Letter ft~ODl the Sp.:::,ciaI Rapporteur on the question of' "torture and o1:her
ill.hun::"aJ1 or degradi:o.o:r t;rea'trnen:t or punishn~ent

4
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Please find attached a letter from. the Special Rapporte\.lr on the question of torture
and other cruel", inl'l'u:rn8.lJ. or degrading treatn1cnt or Pl;lllisl'll::ne:nt, lVIr. Juan E. N1eodez in the
case of Barbar A.hJ:nad and Others 'V. The Unit:ed IGngdolll for the Court:>s consideration.

Best regards~

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