A/HRC/10/44
page 21
64. If testing is indispensable, the way in which it is undertaken needs to be least intrusive and
respect the dignity of the person subjected to the testing. In this context, a case before the
European Court of Human Rights is of interest, even though it concerns the process of securing
evidence.54
65. If forcible testing is done on a discriminatory basis without respecting consent and
necessity requirements, it may constitute degrading treatment, especially in a detention setting.
Therefore, the Special Rapporteur welcomes the clear language used in the UNAIDS/WHO
policy statement on HIV testing of 2004, regarding consent, which requires that, in order to be
able to provide informed consent, the patients should at a minimum be informed of the clinical
benefit and the prevention benefits of testing, their right to refuse, the follow-up services that
will be offered and, in the event of a positive test result, the importance of anticipating the need
to inform anyone at ongoing risk who would otherwise not suspect they were being exposed to
HIV infection.55 The statement also mentions the right to confidentiality, which, if not respected,
might raise concerns regarding inhuman or degrading treatment or punishment.
4. Use of the death penalty and discriminatory treatment in
the administration of justice
66. The Special Rapporteur is concerned that, in some countries, drug offences are punishable
by the death penalty and consequently convicts are held on death row or sentenced to
life-imprisonment. The Human Rights Committee, in its general comment No. 6 on the right to
life, clearly stated that, under article 6 (2), States were obliged to restrict the application of the
death penalty to the “most serious crimes”, which does not include drug-related crimes.56 This
position has been reiterated by the Special Rapporteur on extrajudicial, summary or arbitrary
executions.57 In the Special Rapporteur on torture’s view, drug offences do not meet the
threshold of most serious crimes. Therefore, the imposition of the death penalty on drug
offenders amounts to a violation of the right to life, discriminatory treatment and possibly, as
stated above, also their right to human dignity.
54
“The authorities subjected the applicant to a grave interference with his physical and mental
integrity against his will. They forced him to regurgitate, not for therapeutic reasons, but in order
to retrieve evidence they could equally have obtained by less intrusive methods. The manner in
which the impugned measure was carried out was liable to arouse in the applicant feelings of
fear, anguish and inferiority that were capable of humiliating and debasing him. Furthermore, the
procedure entailed risks to the applicant’s health, not least because of the failure to obtain a
proper anamnesis beforehand. Although this was not the intention, the measure was implemented
in a way which caused the applicant both physical pain and mental suffering. He therefore has
been subjected to inhuman and degrading treatment contrary to Article 3.” Jalloh v.
Germany, 11 July 2006, para. 82.
55
See www.who.int/rpc/research_ethics/hivtestingpolicy_en_pdf.pdf.
56
General comment No. 6/16 of 27 July 1982 in A/37/40, annex V.
57
A/HRC/4/20, para. 53.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents