A/HRC/19/41 2. To prevent torture and other cruel, inhuman or degrading treatment on grounds of sexual orientation or gender identity 11. The right to be free from torture and other cruel, inhuman or degrading treatment is absolute. Article 5 of the Universal Declaration of Human Rights and article 7 of the International Covenant on Civil and Political Rights provide that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”.11 12. According to the Committee against Torture, States are obligated to protect from torture and ill-treatment all persons, regardless of sexual orientation or transgender identity,12 and to prohibit, prevent and provide redress for torture and ill-treatment in all contexts of State custody or control.13 The Committee has repeatedly expressed concern regarding allegations of such abuses in concluding observations on States parties‟ reports.14 3. To protect the right to privacy and against arbitrary detention on the basis of sexual orientation or gender identity 13. The right to privacy is enshrined in article 12 of the Universal Declaration of Human Rights and article 17 of the International Covenant on Civil and Political Rights, which state that no one should be subjected to “arbitrary or unlawful interference with his privacy, family, home or correspondence” Articles 9 of the Universal Declaration and the Covenant further protect individuals from “arbitrary arrest and detention”. In its general comment no. 16, the Human Rights Committee confirmed that any interference with privacy, even if provided for by law, “should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances”. 14. Since Toonen in 1994, the Human Rights Committee has held that laws used to criminalize private, adult, consensual same-sex sexual relations violate rights to privacy and to non-discrimination. The Committee has rejected the argument that criminalization may be justified as “reasonable” on grounds of protection of public health or morals, noting that the use of criminal law in such circumstances is neither necessary nor proportionate.15 In their concluding observations, the Human Rights Committee, the Committee on Economic, Social and Cultural Rights, the Committee on the Elimination of Discrimination against Women and the Committee on the Rights of the Child have urged States to reform such laws and, where relevant, have welcomed their repeal.16 The Working Group on Arbitrary 11 12 13 14 15 16 6 Article 2 (1) of the Convention against Torture stipulates that “each State party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction”, while article 2 (2) states that “no exceptional circumstances whatsoever … may be invoked as a justification of torture”. General comment no. 2 (CAT/C/GC/2), para. 21. Ibid., para. 15. See concluding observations of the Committee against Torture on the United States of America (CAT/C/USA/CO/2), paras. 32 and 37; Ecuador (CAT/C/ECU/CO/3), para. 17; and Argentina (CAT/C/CR/33/1), para. 6(g). See also general comment no. 2 (CAT/C/GC/2), para. 22. The Committee recommended that States parties should take all necessary measures to prevent such acts, including through the review of rules for detention and custody, investigation of all allegations of acts of torture or ill-treatment, prosecution and conviction of perpetrators, compensation to victims and training of personnel involved in detention and custody. See for example the Committee‟s concluding observations on Mongolia (CAT/C/MNG/CO/1), para. 25; Kuwait (CAT/C/KWT/CO/2), para. 25; and Colombia (CAT/C/COL/CO/4), para. 11. CCPR/C/50/D/488/1992, paras. 8.3-8.7. See Human Rights Committee concluding observations on Togo (CCPR/C/TGO/CO/4), para. 14; Uzbekistan (CCPR/C/UZB/CO/3), para. 22; and Grenada (CCPR/C/GRD/CO/1), para. 21; Committee on Economic, Social and Cultural Rights, concluding observations on Cyprus (E/C.12/1/Add.28),