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AIHK’s Submission to the HKSAR government on the implementation of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

31 Mar

AIHK’s Submission to the HKSAR government on the implementation of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Amnesty International Hong Kong (AIHK) is submitting this briefing in response to the Hong Kong Special Administrative Region (HKSAR) government’s invitation for public views on its fourth report under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

This submission sets out some of Amnesty International’s key concerns and recommendations related to the implementation of the CAT by the HKSAR government. It highlights our concerns with regards to legal safeguards against torture and other illtreatment (Article 2); non-refoulement (Article 3); criminalizing acts of torture (Article 4); guidelines and education for law enforcement (Article 10); arrest, detention, and imprisonment (Article 11); independent complaint mechanism and impartial investigation into torture allegations (Articles 12, 13 and 14), and prevention of torture (Article 16). 

Two police officer were prosecuted by torturing a tied suspect in late 2019. Source: BBC

AIHK’s recommendations are listed as below:

Legal safeguards against torture and ill-treatment (Article 2)

  • Amend the National Security Law to ensure that where sufficient, admissible evidence exists, those suspected of committing the crime of torture or other acts of ill-treatment should be prosecuted in proceedings that meet international standards of fairness, or subjected to disciplinary or other appropriate action.
  • Amend or remove clauses in the NSL that place the burden on the defence to establish that pre-trial detention is unnecessary and disproportionate. 

Non-refoulement (Article 3)

  • Uphold obligations to protect individuals from torture and other ill-treatment, including by respecting the principle of non-refoulement;
  • Request that the Central Government extends the 1951 Convention relating to the Status of Refugees and its 1967 Protocol to the HKSAR.
  • Immediately cease the use of detention solely for immigration purposes, including for determining the elements on which an individual’s claim to asylum is based, unless in the most exceptional of circumstances, namely to prevent an objective risk of absconding, to verify identity or to ensure compliance with a deportation order, only for a period as long as is necessary, and implement a presumption against such detention in law and practice.
  • Immediately stop denying detainees access to adequate health care and, where specialist or any other treatment is not available within detention facilities, ensure that detainees are transferred to specialized institutions or hospitals.

Criminalizing acts of torture (Article 4)

  • Take concrete and immediate actions to repeal or amend laws and regulations that foster abuse and exploitation of migrant domestic workers, including the “Two-Week Rule” and legislation that force migrant workers to live with their employers and excludes them from the Minimum Wage Ordinance (Cap 608).
  • Pursue with the Central Government in Beijing the extension of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Palermo Protocol, ratified by the People’s Republic of China in 2010) to the Hong Kong Special Administrative Region, and subsequently incorporate its provisions into Hong Kong law and implement it in policy and practice;
  • Adopt a comprehensive law on prevention, prosecution and protection to combat human trafficking and forced labour.

Guidelines and education for law enforcement (Article 10)

  • Provide public transparency and scrutiny of guidelines and procedures on the police use of force;
  • Ensure that the law and regulations governing the use of force by law enforcement officials are in line with international law and standards and that all law enforcement officials are properly trained accordingly.

Arrest, detention and imprisonment (Article 11)

  • Ensure that individuals in detention are protected from coerced “confessions”, torture and other ill-treatment;
  • Publicly disclose comprehensive information on the use of solitary confinement;
  • Ensure that people in custody are not subjected to prolonged solitary confinement and never impose additional security measures on them without assessing whether they are absolutely, necessary and proportionate;
  • Amend all relevant laws, regulations and policies to ensure that the use of solitary confinement is imposed only on the basis of a court decision setting time limits and not for groups that under international law are excluded from this type of detention, and also that concrete steps are taken to minimize the harmful effects of solitary confinement on the individual by ensuring that they have access to adequate exercise, social and mental stimulation and that their health is regularly monitored.
  • The Hong Kong Police Force, Hong Kong Immigration Department and Hong Kong Correctional Services should develop and implement gender and human rights training for law enforcement officials to ensure that people are not discriminated against or ill-treated in custody because of their sexual orientation or gender identity – including procedures to ensure that transgender individuals have prompt access to hormone therapy as required, that they are detained in a facility consistent with their gender identity and that, if necessary, they are only searched by officers likewise consistent with their gender identity.

Independent complaint mechanism and impartial investigation into torture allegations (Articles 12, 13 and 14)

  • Ensure that all law enforcement officials are individually identifiable through name or personal number tags at all times when they are interacting with the public.
  • Take necessary measures to establish a fully independent mechanism mandated to conduct independent, proper and effective investigations into complaints about the inappropriate use of force or other abuse of power by the police, including illtreatment of protesters, observers or by-standers, and empowered to formulate binding decisions in respect of investigations conducted and findings regarding such complaints.

Prevention of torture (Article 16)

  • Ensure that the law and regulations governing the use of force by law enforcement officials are in line with international law and standards, including the UN Basic Principles on the Use of Force and Firearms for Law Enforcement Officials and that all law enforcement officials are properly trained accordingly.
  • Set up a quick, accessible and transparent new legal gender recognition procedure that does not include any requirements for medical treatments of any kind as a precondition.

The full text of AIHK’s submission of CAT is available as below:

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