The Inter-American Court of Human Rights has held that the right to challenge the lawfulness of one’s detention is a non-derogable right because of the risk posed to people held in detention, including the risk of being subjected to torture (Advisory Opinion on Habeas Corpus in Emergency Situations). The European Court of Human Rights has not to date expressly held that Article 5 rights have a similar non-derogable character, but the focus on detention in this report might suggest an attitudinal shift within the COE to that position. The following passage from the Preface of the Report is particularly interesting and echoes the UN Committee on Torture’s conclusion last year that incommunicado detention in itself might be considered torture or inhuman and degrading treatment:
It is disturbing, at the beginning of the 21st century, to be obliged to recall basic principles long enshrined in both national and international law and which one had assumed would be inviolate. Deprivation of liberty must be based upon grounds and procedures established by law, be formally recorded, and be open to review by a judicial authority. Further, all persons deprived of their liberty by a public authority should be held in facilities which are officially recognised for this purpose and placed under the responsibility of a clearly identifiable entity. The practice of secret detention constitutes a complete repudiation of these principles.
Secret detention can certainly be considered to amount in itself to a form of ill-reatment, both for the person detained and for members of his or her family. Further, the removal of fundamental safeguards which secret detention entails – the lack of judicial control or of any other form of oversight by an external authority (such as the ICRC) and the absence of guarantees such as access to a lawyer – inevitably heightens the risk of resort to ill-treatment. And in the light of the information now in the public domain, there can be little doubt that the interrogation techniques applied in the CIA-run facilities concerned have led to violations of the prohibition of torture and inhuman or degrading treatment.