The real torture is in the waiting

June 25, 2009

Marc CallcuttMarc Callcutt is a casework lawyer for the Reprieve Death Penalty team. The opinions expressed are his own.-

Exactly five years ago, the International Day in Support of Victims of Torture, two Britons, Naheem Hussain and Rehan Zaman, were in Dadyal Police Station, in Pakistan having been arrested on murder charges.

The police used their usual interrogation techniques. Rehan was hung upside down, in what is known as an inverse strappado, and had one of his finger nails pulled out. Naheem was tied to a chair and had red chillies rubbed in his eyes. Both had the police attempt to break their legs, and both were subjected to hours of falaka – a torture that involves whipping of the feet with a rod or cane, used because it is incredibly painful but leaves few scars. The torture was such that in the end, both of them signed “confessions” accepting their role in the murders.

Yet, if you talk to the two men now, it is not the 14 days of torture they suffered at the hands of the police they will complain about, but rather their ongoing torture at the hands of the Pakistan criminal justice system. Five years on, they remain in prison, unconvicted, desperate for their trial. Every day they wake up uncertain of how long they will remain in prison – the potential of the death penalty hanging over them like the sword of Damocles. They will tell you that this torture is much crueller than anything that they faced at the hands of the police. Rehan in particular has been told Reprieve that if his case fails to progress by the end of the year he will be forced to “sentence himself”.

The mental anguish that those on death row suffer has become so common that in legal circles it is simply known as “the death row phenomena” and courts have had to take action to limit such suffering. The European Court of Human Rights refused to allow the extradition of a German national to the U.S. on the basis that the “ever-present and mounting anguish of awaiting execution” was a breach of his right not to suffer torture or inhuman or degrading treatment. Similarly, the Privy Council here in the UK decided that to carry out an execution “after holding [defendants] in an agony of suspense” for more than five years would be inhuman and degrading.

If Naheem and Rehan were being held within the Privy Council’s jurisdiction, there would be no chance of them facing execution now that their case has been delayed for more than five years. The courts would simply not permit this tortuous status quo to continue. In fact, the case against both men would be thrown out, given the physical torture that they both were subjected to on their arrest. Instead though, their case limps on – seemingly years away from a conclusion.

Now Reprieve, along with their local lawyers, is working ensure that the torture they suffered five years ago is properly investigated, and no evidence gathered during those 14 days of brutality is used against them at their trial. The British government did contact the Pakistan authorities to request such an investigation, but months have passed and they are yet to have a response. Meanwhile, Naheem and Rehan have remained in prison. Now the Prime Minister himself needs to raise the issue with President Zadari, if we are to see any progress.

The irony is that it is the torture that they endured all those years ago that hold the key to their case, yet it is the daily torture of living in the executioner’s shadow that causes them the most anguish.

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