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Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Part I Substantive Articles, Art.4 Obligation to Criminalize Torture

Nóra Katona

From: The United Nations Convention Against Torture and its Optional Protocol: A Commentary (2nd Edition)

Edited By: Manfred Nowak, Moritz Birk, Giuliana Monina

Content type:
Book content
Product:
Oxford Scholarly Authorities on International Law [OSAIL]
Series:
Oxford Commentaries on International Law
Published in print:
19 December 2019
ISBN:
9780198846178

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 27 September 2023

Subject(s):
Torture — Treaties, interpretation

(p. 176) Article 4  Obligation to Criminalize Torture

  1. 1.  Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.

  2. 2.  Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.

1.  Introduction

1  The object and purpose of the Convention is to make the struggle against torture and cruel, inhuman or degrading treatment more effective by establishing State obligations to prevent torture and other forms of ill-treatment, and to assist victims, as well as to punish the perpetrators of torture. Article 4 is the central norm in relation to the objective of fighting impunity as one of the root causes of the widespread practice of torture worldwide. It requires States parties to make torture, but not other forms of ill-treatment, an offence under their domestic criminal laws with appropriate penalties taking into account the grave nature of the crime of torture. The term ‘torture’ must be interpreted in accordance with the definition in Article 1, which means that not only the act of torture but also the attempt, instigation, incitement, superior order and instruction, consent and acquiescence, concealment, and other forms of complicity and participation, must be criminalized. Although not a strict legal requirement, it is advisable that States parties fully incorporate the definition of Article 1, without the sentence on ‘lawful sanctions’, into their domestic criminal code.

(p. 177) 2  The fact-finding missions of the UN Special Rapporteur on Torture, Manfred Nowak, have shown that perpetrators ‘if held accountable at all, were predominantly punished with disciplinary sanctions and light or suspended prison sentences. The forms of discipline do not normally go beyond demotion, delayed promotion or pay freeze’.1 According to the practice of the CAT Committee in the State reporting procedure, only a prison sentence of at least a few years can be considered as an appropriate penalty which takes the grave nature of torture into account. Victims of torture can also invoke Article 4 in the individual complaints procedure under Article 22. In a landmark decision against Spain, the CAT Committee ruled that pardoning civil guards, who had been found guilty of torture by an independent court, violated the victim’s rights under Article 4(2).2

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

3  Declaration (9 December 1975)3

Article 7

Each State Party shall ensure that all acts of torture as defined in article 1 are offenses under its criminal law. The same shall apply in regard to acts which constitute participation in, complicity in, incitement to or an attempt to commit torture.

4  IAPL Draft (15 January 1978)4

Article IV

The Contracting Parties undertake to adopt legislative, judicial, administrative and other measures necessary to give effect to this convention to prevent and suppress torture, and in particular to ensure that:

  1. (a)  any act of torture is punishable under its laws as a grave crime;

  2. (b)  persons believed to be responsible for acts of torture are prosecuted and when found guilty, punished and disciplined in accordance with their laws;

Article VIII

No prosecution or punishment of torture shall be barred by the application of a period of limitation of lesser duration than that applicable to the most serious offense in the laws of the contracting Parties.

5  Original Swedish Draft (18 January 1978)5

Article 7

  1. (1)  Each State Party shall ensure that all acts of torture as defined in article 1 are offenses under its criminal law. The same shall apply in regard to acts which constitute participation in, complicity in, incitement to or an attempt to commit torture.

  2. (p. 178) (2)  Each State Party undertakes to make the offenses referred to in paragraph 1 of this article punishable by severe penalties.

6  Revised Swedish Draft (19 February 1979)6

Article 4

  1. (1)  Each State Party shall ensure that all acts of torture are offenses under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.

  2. (2)  Each State Party shall make these offenses punishable by appropriate penalties which take into account their grave nature.

2.2  Analysis of Working Group Discussions

7  Commenting on Article 7 of the original draft version of the Swedish text, Spain observed that, in regard ‘acts of participation’, reference should be made not only to accomplices but also to accessories after the fact. Additionally, the word ‘incitación’ (incitement) could be replaced by the term used in Article 3 of the Spanish Criminal Code, namely ‘proposición o provocación’ (proposal or provocation). In paragraph 2 of the same article, the expression ‘penas severas’ should be replaced by the more technical term ‘penas graves’.

8  France suggested that, in paragraph 1, the word ‘délits’ (offence) should be replaced by the word ‘infractions’ (infraction) and the word ‘incitation’ (incitement) should be replaced by ‘provocation’ (provocation). France also suggested that paragraph 2 could be made into a separate article and, as far as the concept of ‘cruel, inhuman or degrading treatment or punishment’ is maintained in the Convention, such treatment or punishment should also be considered as an offence punishable by severe penalties.7

9  In written comments, the UK Government suggested that the words ‘as defined in Article 1’ be deleted, reasoning that it was unnecessary to refer to the definition already given in Article 1 which applies throughout the draft. The UK delegation also suggested that paragraph 2 be deleted and replaced with ‘Each State Party shall make these crimes punishable by appropriate penalties which take into account their grave nature’. The United Kingdom pointed to a precedent for this formula in Article 2(2) of the 1973 New York Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents.8 These points were taken into account in the revised Swedish draft which contains the wording as it appears in the final text of the Convention.

10  As regards the concepts of ‘complicity or participation in torture’ in Article 4(1) of the revised Swedish draft, doubts were expressed whether, in the legislation of all (p. 179) countries, these terms would cover those persons who were accessories to the crime of torture after it had occurred or who had in some way concealed acts of torture. One representative proposed the addition of the word ‘encumbrimiento’ (concealment) in Spanish. Some speakers felt that in the legal systems of their countries the term ‘complicity’ already covered the concept of ‘concealment’.

11  The Working Group agreed to include, in brackets, an explanatory footnote for Article 4(1) on this matter,9 and adopted by consensus the following version of Article 4:

  1. (1)  Each State Party shall ensure that all acts of torture are offenses under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.

  2. (2)  Each State Party shall make these offenses punishable by appropriate penalties which take into account their grave nature.

Subsequently, one delegate reserved his position on Article 4 because of his concern that the word ‘complicity’ was not broad enough to cover the notion of ‘accessory after the fact’ under his country’s domestic law.10

12  Bulgaria expressed its support for the provisions in Article 4.11

13  At the fifty-sixth meeting, the USSR unsuccessfully introduced amendments12 to the draft resolution regarding Article 4(1) which suggested that the words ‘irrespective of the reason, purposes and motives for which they were committed’ be added after ‘all acts of torture’.13

3.  Issues of Interpretation

3.1  Applicability of Article 4 to Cruel, Inhuman and Degrading Treatment

14  During the drafting of the Convention, some States parties maintained that severe penalties in domestic law should not only criminalize torture but also other forms of ill-treatment.14 However, the majority of States parties were of the opinion that a State obligation to criminalize such behaviour should only apply to torture in the narrow sense.15

15  In contrast, in its General Comment No 2, the CAT Committee states that ‘Articles 3 to 15 are likewise obligatory as applied to both torture and ill-treatment’.16 In line with this, the CAT Committee extended in some concluding observations the scope of Article 4, concluding that provisions that make the imposition of other forms (p. 180) of ill-treatment punishable must also be included in national criminal laws.17 Following this interpretation of Article 4 would result in a significantly broader obligation of the States parties.

16  Although the CAT Committee in the context of the State reporting procedure occasionally criticized States parties for not including other forms of ill-treatment in their criminal laws, this has been recorded only on a limited number of occasions.18 In fact, both the formulation of Article 4(1) and the travaux préparatoires indicate that the obligation to criminalize does not apply to other forms of ill-treatment.19 One argument being the difficulty to find a definition of cruel, inhuman and degrading treatment or punishment, also because the Convention does not provide for a definition.20

17  Further, the State obligations under Article 16 require States parties to ‘prevent’ other forms of ill-treatment not amounting to torture. In that regard, Articles 4 to 9—being mainly of repressive nature—stand separate from the key preventive Articles 10 to 13. Notwithstanding the fact that the use of criminal law, of course, also has a preventive effect,21 the main objective of Article 4 remains primarily to criminalize acts of torture and prosecute perpetrators. Accordingly, States parties are not obliged to make the offence of cruel, inhuman and degrading treatment a crime in domestic law. Thus, no further State obligations evoke from Article 4 than to criminalize torture. This does not exclude that general customary international law or other (regional) treaties might require States parties to criminalize other forms of ill-treatment as well.22

(p. 181) 3.2  Criminalized Acts under Article 4

3.2.1  Meaning of ‘all acts of torture’

18  The obligation of States parties to criminalize torture is based on Article 7 of the 1975 Declaration, which was reproduced literally in Article 7(1) of the original Swedish draft.23 On the initiative of the UK delegation, the words ‘as defined in Article 1’ were deleted from Article 4 (1), since it was clear that the definition of torture in Article 1 applied throughout the Convention. In other words, at least—all acts of torture as defined in Article 1 has to be criminalized under the Convention.24

19  Further, certain omissions may also be classified as torture. Although there is no explicit reference in the travaux préparatoires and the Convention refers to the term ‘acts’, it would contradict the Convention’s overall aim to exclude all omissions amid the presence of all other elements that constitute torture. It would not be consistent to exclude omissions, which can also amount to severe pain or suffering of the victim. Thus, arguably at least some omissions must fall within the scope of Article 1 and must be criminalized according to Article 4.25 Respectively, the CAT Committee states in its General Comment No 3 that the Convention does not only require criminalizing an act but also an omission ‘as long as it is deliberately meant for inflicting the victim with severe mental or physical suffering’.26

3.2.2  Meaning of ‘attempt, complicity and participation’

20  According to the text of the Convention, for establishing criminal responsibility under Article 4, an act of torture does not need to be committed, because an attempt to commit torture should also be criminalized.27 For example, if law enforcement officers refuse to follow a respective order by a superior and do not apply torture methods, the superior officer is nevertheless guilty of an attempt to commit torture and should be punished accordingly.28

21  The second sentence of Article 4(1) was only slightly amended from the Original Swedish draft by deleting the word ‘incitement’ which still seems to be covered by the broader terms ‘complicity or participation’. Further, the Working Group wished to ensure, by adding a footnote to its draft of Article 4(1), that the term ‘complicity’ also includes the concept of ‘concealment’ after torture has been committed.29 Although the Convention does not expressly link the wording of Article 1 with the terms ‘complicity’ or ‘participation’ in Article 4, Article 4(1) is closely related to the definition of torture (p. 182) in Article 1(1), which includes instigation, consent and acquiescence. In other words, as the term ‘all acts of torture’ must be read in accordance with the definition in Article 1 throughout the Convention, the terms ‘complicity or participation’ in Article 4 must be interpreted to include incitement, instigation, superior orders or instructions, (tacit) consent,30 acquiescence and concealment.31 The CAT Committee in the State reporting procedure also confirmed this broad interpretation.32

22  Thus, the Convention obliges States parties not only to criminalize the direct perpetrator of torture—committed or attempted—but also those who are directly or indirectly involved. Accordingly, for example, individuals involved in the chain of commands by inciting, instigating, instructing, acquiescing, participating or being complicit in a way corresponding with Article 1 either before, during, or after the act of torture are equally criminally liable under Article 4. Thus, officials who order or instruct others to carry out torture must be made criminally responsible by national law.33 Superior officials are also guilty of complicity (acquiescence) in torture if they knew or should have known that torture is practised by personnel under their command and failed to act to prevent or stop it.34 Any involvement of doctors, even if only to ensure that the victim does not die or suffer physical injuries, is punishable as a form of participation.35

23  Additionally, States parties are obliged to criminalize acts relating to cover-up or concealment, at the very least, positive acts taken with the intention of concealing an act of torture or leaving it unpunished.36 According to the CAT Committee, even those who knowingly fail to report acts of torture can be held criminally culpable.37 Therefore, certain intentional omissions aimed at concealing torture may also be covered by ‘complicity or participation’.38

3.3  Criminalization of Torture under National Law

3.3.1  Inclusion of a Separate Offence

24  Article 4(1) requires every State party to ‘ensure that all acts of torture are offenses under its criminal law’. According to Burgers and Danelius, Article 4 does not require ‘that there must be a separate offense corresponding to torture under [A]rticle 1 of the Convention’.39 Burgers and Danelius were of the opinion that each State party was free to decide whether to deal with torture as a separate offence or to include acts of torture in one or more wider categories of offences. However, they insisted that ‘whatever solution is adopted, the criminal law must cover all cases falling within the definition in [A]rticle 1 of the Convention’.40 This interpretation has given rise to much confusion, and many States parties argued that torture was in any way included in their traditional offences, such as ill-treatment or infliction of bodily harm41 but also amongst others, such (p. 183) as assault,42 rape,43 arbitrary acts,44 or the abuse of power and excess of authority or official power.45

25  However, the inclusion of a separate offence eases the adherence with States parties’ further obligations under the Convention, for example, to give effect to the specific jurisdiction under Articles 5 and 7.46 Otherwise, States parties are inevitably confronted with the problem of the legal classification of a crime over which they need to establish jurisdiction,47 and on the grounds of which they can institute prosecutions of persons who have perpetrated torture elsewhere.48 Moreover, although acts that could be characterized as torture are punishable under various articles of the national Criminal Code, the absence of a single definition of the crime of torture as a separate criminal offence may cause a legal vacuum, possibly leaving some acts amounting to torture uncovered and subsequently unpunished.49

26  Over time, the CAT Committee made clear in its concluding observations that Article 4 required the inclusion of torture as an offence in accordance with the definition in Article 1.50 Furthermore, the CAT Committee has also recommended that the crime of torture should constitute a separate offence in the domestic legislation and not just an aggravating circumstance for the determination of a sentence.51 It reiterated that by a separate definition and a separate offence of torture in accordance with the Convention and distinguishing it clearly from other crimes, ‘States parties would directly advance the Convention’s overarching aim of preventing and punishing torture’.52 Following General Comment 2, ‘[n]aming and defining this crime will promote the Convention’s aim, inter alia, by alerting everyone, including perpetrators, victims, and the public, to the special gravity of the crime of torture’.53

27  Further, for Article 4 to have its full effect, the CAT Committee considers that specific measures must still be taken at the national level, even if a State allows for the direct effect of provisions of international law (‘monist systems’).54 As the Convention in the context of Article 4 is not considered as self-executing,55 the direct applicability of the (p. 184) Convention in a State party alone is not sufficient to ensure the obligations under Article 4. Accordingly, the offence of torture as defined in the Convention must be linked to a national provision, which imposes an appropriate punishment.

28  Besides, the CAT Committee noted in its conclusions that if the State party’s domestic law itself does not explicitly reflect this prohibition, nor does it impose criminal sanctions the requirements under Article 4 are not met even if other (treaty) obligations expressly prohibit torture and other forms of ill-treatment. The CAT Committee considered that express incorporation in the State party’s domestic law of the crime of torture is necessary to ‘signify the cardinal importance of this prohibition’ and ensure compliance with the obligations under the Convention.56 The CAT Committee has also emphasized that a very general prohibition of torture—be it in the Constitution or any other particular national law, without specifically naming and criminalizing the offence of torture—is not corresponding to Article 4.57 In addition, the sole inclusion of relevant articles of other international treaties into national legislation may not comply with the requirements of Article 4(1) if it does not adequately criminalize torture in general criminal law according to Article 1.58

29  States parties should further ensure the criminalization of torture, in respect to cover their entire territory. In this regard, the CAT Committee expressed concerns relating to the lack of congruity between the offence of torture in domestic law and the requirements under Article 4.59

3.3.2  Inclusion of a Definition of Torture

30  States parties must ensure that all forms of torture as defined under Article 1 are punishable offences under national law.60 Given this connection between Articles 1 and 4, it is difficult to separate the discussions on the inclusion of the offence of torture in national criminal law from the debate of including a definition of torture in national legislation. For this reason, many of the CAT Committee’s concluding observations and comments relevant to Article 1 apply similarly to the obligations under Article 4. Article 4 does not explicitly require that the definition of torture in Article 1 is reproduced verbatim in national criminal law. Rather, States parties must make all forms of torture punishable in national legislation.61 Therefore, the definition must cover at a minimum—but can be broader as well—all acts of torture covered in Article 1.62

31  However, practice shows that it is difficult, if not impossible, to cover all the different aspects included in the definition of torture under Article 1 without explicitly (p. 185) incorporating a proper definition in national criminal code.63 The CAT Committee highlighted that the lack of a definition of torture in national criminal code could lead to confusion and adversely affect the compliance by the States parties with their obligations to prevent and prohibit torture under the Convention.64 Also because ‘serious discrepancies between the [C]onvention’s definition and that incorporated into domestic law create actual or potential loopholes for impunity’.65 While the inclusion of the definition in Article 1 would enhance the clarity and predictability in the criminal law,66 a partial inclusion or incompleteness of the definition of torture and its criminalization may thus result in impunity for acts of torture. Moreover, a lack of codification or a not proper definition of the crime of torture in national criminal law benefits too lenient penalties.67 Hence, according to the CAT Committee, criminal laws do not comply with Article 1 if they overlook or partially restrict the definition of torture. Thus far, the CAT Committee has criticized States parties, on the one hand, for a non-adequate inclusion of the purpose or reason element of the crime.68 On the other, for a non-adequate inclusion of the scope of application—either due to the limited scope of69 or delineation between70 (p. 186) potential perpetrators or the exclusion of some conducts,71 modalities of involvement in the crime,72 and/or the stage of accomplishing the crime of torture73 (attempt).74 After initial hesitation, the CAT Committee has increasingly urged States parties to include an explicit definition of torture in their national criminal legislation that is in ‘strict conformity’ with the Convention.75

32  In light of the above, full incorporation of a definition of torture is advisable in order to avoid difficult problems of interpretation and implementation. This conclusion does not apply to the ‘lawful sanctions’ clause in the last sentence of Article 1(1).

3.4  Meaning of ‘Punishable by appropriate penalties’

33  During the drafting of the Convention, the words ‘punishable by severe penalties’76 were replaced by ‘appropriate penalties which take into account their grave nature’.77 This formulation is taken verbatim from Article 2(2) of the New York Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons of 197378 and Article 2 of the International Convention Against the Taking of Hostages of (p. 187) 1979.79 In fact, there is no significant difference between ‘severe penalties’ and ‘appropriate penalties which take into account [the] grave nature’ of the offences punishable under Article 4.

34  Apart from literal interpretation of Article 4(2), neither the provisions of the Convention nor the jurisprudence of the CAT Committee defines a specific penalty and type or extent of sentence appropriate to and commensurate with the grave nature of the crime of torture. In the reporting procedure, the CAT Committee also did not arrive at a clear determination of what would constitute an appropriate punishment.80 The provision of Article 4(2) makes clear that torture is one of the most severe human rights violations that requires a punishment severe enough to have a deterrent effect.81 This means that torture should not be a misdemeanour,82 but a crime similar to the ‘most serious offenses under the domestic legal system’.83 This is confirmed by the practice of the CAT Committee that held that torture should also receive the heaviest punishment.84

35  In this regard, after a careful examination of the CAT Committee’s concluding observations and the opinions of individual members, Ingelse concluded that a ‘custodial sentence of between six and twenty years’ would best correspond to the CAT Committee’s interpretation of the requirements of Article 4(2).85 Since then, there have been numerous concluding observations in line with this conclusion without further defining the ‘appropriate penalties’ that take into account the grave nature of the act. Thus, contradicting the State obligations under Article 4(2) are fines,86 conditional sentences or probation87 as well as penalties that do not take not into account the grave nature of the crime of torture.88 In turn, from a human rights perspective life imprisonment, corporal or capital punishment also do not constitute an appropriate penalty.

36  Moreover, a very broad margin of discretion on the penalty for the crime of torture is not in accordance with Article 4(2), even if the maximum penalty corresponds to the standards set forth by the practice of the CAT Committee. The CAT Committee has (p. 188) stated that a penalty in the Criminal Code of the State Party of one to ten years’ imprisonment for the basic crime of torture allowing the judge to impose a minimum sentence of one year is insufficient.89 In other words, the sentence for the crime of torture must also correspond at the minimum penalty provided by law to the requirements in Article 4(2).90

37  Further, it has to be stated that the consequences of torture should not be decisive for the sentence. The intention to torture itself is the injustice that must be convicted. Additional aggravating circumstances as for example the permanent disability or death of a victim should not influence the severity of the sentence, because the intention of torturing also holds the possibility of lasting physical and mental effects and cannot be excluded based on the very nature of the act of torture. Subsequently, the appropriate sentence has to target the injustice element of torture itself adequately.91

3.5  Exclusion of any Immunity, Justification, and Excuse

38  The prohibition of torture is an absolute and non-derogable right. Thus, according to Article 2 neither exceptional circumstances, such as state of war, internal political emergency or any other public emergency or order from a superior officer or public authority may be invoked as a justification of torture.92 Hence, the inclusion of a definition of the crime of torture with corresponding penalties in accordance with Article 4 in itself is not sufficient to effectively prevent and punish the acts corresponding to Article 1. It further requires the absence of limitations or defences such as ‘necessity’ or superior orders in law and practice.

39  The Convention does not permit any exceptions from the prohibition or the criminalization of the crime of torture due to a defence of immunity, justifications, or excuses.93 Nevertheless, the tendency of granting amnesty for or pardoning torturers has been identified in numerous cases.94 As the CAT Committee reiterated in different occasions, such a practice not only violates the absolute and inexcusable character of torture, but it also undermines the level of culpability and the degree of punishment that the grave nature of the crime necessitates imposing. Accordingly, any national law that grants amnesty, immunity, or pardon for perpetrators of torture—be it on traditional, religious, or other grounds—would undoubtedly violate the State’s obligation under Article 4 and the absolute prohibition doctrine as stated in Article 2.95

40  The aim of the Convention to punish perpetrators of torture together with the absolute nature of the prohibition of torture implies that granting immunities and amnesties,96 for example to police, prosecutors, or military officials,97 contradicts the obligations under Article 4.98 Therefore, immunity should not hinder the investigation of alleged acts (p. 189) of torture and States parties should ensure that all persons can be held criminally liable for these acts. In addition, as Burns has strongly emphasized, general amnesties ‘by their very nature’ violate Article 4.99 In this sense, States parties must ensure that amnesty laws exclude the offence of torture.100

41  By similar reasoning as for immunity and amnesty, the pardoning of perpetrators of torture precludes or indicates the breach of obligations under Article 4(2). In the landmark case of Guridi v Spain, the CAT Committee reiterated the importance of punishing perpetrators of acts of torture with penalties in accordance with the nature and gravity of the offence. It considered that ‘in the circumstances of the present case, the imposition of lighter penalties and the granting of pardons to the civil guards are incompatible with the duty to impose appropriate punishment’.101

42  Further, Article 2(3) leaves no open question in relation to the justification of torture due to superior orders and unequivocally prohibits superior orders as a defence for criminal responsibility. Hence, the State practice to provide amnesty or immunity to officials or military personnel under ‘due obedience’ laws does not comply with Article 4.102 During the drafting process, the proposal to include the qualification to consider superior orders a ground for mitigation of punishment—if justifiable—was rejected. However, since then, it has been argued that a reduced sentence due to a superior order cannot be excluded.103 This approach is arguable only while recognizing that mitigation can exclusively be applied if the perpetrator of torture has already been found guilty.104 Even then, the mitigation cannot contravene the obligations under Article 4(2) and thus, the penalties must still reflect the grave nature of the crime committed. Otherwise, the requirement of appropriate penalties, which take into account the grave nature of the crimes committed, are not met. Thus, the obedience to superior orders cannot constitute a justification or an excuse and the impact of mitigating circumstance on the sentence has to be limited in accordance with Article 4(2).105

43  In conclusion, amnesties, immunities, pardons, and other justifications or excuses are violating the obligations under Article 4 even where it has been granted to resolve armed conflicts or to engage in transitions. The same goes for state of emergency amid the amount of threat.106 In accordance, the CAT Committee has recommended the abandonment of laws and practices that hinder the investigation and if appropriate the (p. 190) punishment of perpetrators of torture. All public officials and persons acting in an official capacity who engage in conducts that constitute torture must be charged accordingly.107

3.6  Statute of Limitations

44  A statute of limitation by domestic law prevents the practical realization of the absolute prohibition of torture, the proper investigation, prosecution, and punishment of this non-derogable prohibition and ultimately results in impunity for the perpetrators.108 While Rodley and Pollard do not entirely exclude the possibility for a statute of limitations if such a period at least reflects the exceptional seriousness of the crime and ranks amongst the longest foreseen by national law, the CAT Committee has insisted in numerous cases that no acts amounting to torture should be subject to any statute of limitations.109 In consideration of its effects, a statute of limitations on a crime of torture would hinder the overall aim of the Convention.110 Accordingly, no time bar should deter the application of criminal law to all acts of torture.111

45  Further, the exclusion of the statute of limitation only to cases where torture becomes an integral element of a crime of humanity112 or only when it is committed against specific groups (eg, against persons protected under international humanitarian law)113 does not comply with the Convention. Moreover, a statute of limitations for specific aspects of acts of torture corresponding to Article 1, including attempts to commit torture or an act committed by any person, which constitutes complicity or participation in torture likewise contradict Article 4. This means that the rule on the statute of limitation has to be excluded for all acts of torture. The application of a statute of limitations is at complete odds with the obligations under Article 4. This is true, regardless of the longer or shorter period fixed by the law as a statute of limitation.114

3.7  Can a Violation of Article 4 be Invoked in the Individual Complaint Procedure?

46  The Convention contains various State obligations aimed at preventing torture and punishing the perpetrators of torture. From the text of these provisions, it is not always clear whether they also provide subjective rights, which victims of torture can invoke in an individual complaints procedure. This question is particularly difficult to answer in relation to the obligation of States parties to punish perpetrators, because human rights (p. 191) law, in principle, does not recognize a subjective right of victims to have perpetrators of human rights violations punished by criminal law.115

47  Before the Convention entered into force, the CAT Committee, in OR et al v Argentina (also known as the ‘Punto Final’ cases), noted that the enactment of the ‘Punto Final’ and Due Obedience Acts only shortly before the entry into force of the Convention was ‘incompatible with the spirit and purpose of the Convention’. It held in an obiter dictum that Argentina was ‘morally bound to provide a remedy to victims of torture and to their dependants’, which would be hindered by the enactment of the legislation.116 In this context, it is also worth noting the earlier decision of the Human Rights Committee (HRC) in the case of Hugo Rodriguez v Uruguay. The case concerns a victim of torture under the former military regime, who submitted a complaint against the later civilian regime for having enacted a comprehensive amnesty law in 1986. In this case, the HRC noted with deep concern that the adoption of this law effectively excluded the possibility of investigations into past human rights abuses. The amnesty law thereby prevented the State party from discharging its responsibility to provide effective remedies to the victims of those violations. The HRC, consequently, found a violation of Article 7 CCPR, in conjunction with Article 2(3).117

48  After the entry into force of the Convention, in a number of individual complaints, the applicants claimed violations of various Articles of the Convention, including Article 4, on the grounds that the State party had failed to criminalize torture, to take any action to investigate their allegations of torture, and to bring the perpetrators to justice. Here, the CAT Committee did not rule on the claimed violation of Article 4 by stating that ‘there are insufficient elements to make a finding on the alleged violation of other provisions of the Convention raised by the complainant at the time of adoption of this decision’.118

49  The CAT Committee found for the first time a violation of Article 4(2) in the landmark case of Guridi v Spain.119 In this case, a Spanish court found three civil guards guilty of torture and sentenced each of them to imprisonment of four years, two months, and one day. The Supreme Court decided to reduce the prison sentences on the ground that the injuries suffered by the complainant had not required medical or surgical attention, but only first aid. Finally, the civil guards were granted pardon and were suspended from any form of public office for one month and one day. The CAT Committee ruled that pardoning civil guards, whom an independent court had found guilty of torture, violated the victim’s rights under Article 4(2). It stated that, ‘in the circumstances of the present case, the imposition of lighter penalties and the granting of pardons to the civil guards are incompatible with the duty to impose appropriate punishment’.120 Although the decision lacks further reasoning, the broad interpretation of the victim status to invoke an individual complaint procedure by the CAT Committee has been an important development.

(p. 192) 50  Regardless of the fact that the CAT Committee has adopted only few decisions under Article 4—also because cases were declared inadmissible for lack of substantiation or being manifestly unfounded121—the case of Guridi has demonstrated that Article 4 can be invoked in the individual complaint procedure. In view of contemporary human rights theory,122 the argument of the Spanish Government in the Guridi case that the interests of the victims were unaffected by the decisions of Government authorities in relation to perpetrators of gross violations of human rights, including torture, is no longer acceptable. It is beyond any doubt that victims of the crime of torture have a legal interest that those who tortured them are brought to justice. For many victims of torture, the punishment of the perpetrators constitutes a much more important form of reparation and justice than pecuniary compensation or any other relief.123 Accordingly, Article 4, concerned with bringing the perpetrators to justice under criminal law, is linked to reparations in that it provides victims with a sense of satisfaction and justice. That is also why punishment of the perpetrator is explicitly provided for as a form of reparation in the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law.124 In order to claim such reparation, the victim, therefore, must enjoy the remedy of submitting an individual complaint against the respective authority under domestic law125 as well as against the State party before the CAT Committee.

51  Further, criminalization under Article 4 is a precondition for other obligations under the Convention to be invoked, for example for Articles 5 to 9 and also for Article 14. The official recognition of individuals having been subjected to torture as victims through domestic procedures is the prerequisite for the exercise of the right to remedy and reparations enshrined in Article 14. This is closely linked to the States parties’ obligation to make acts of torture punishable as criminal offence under national criminal law as the failure to enact legislation in line with Article 4 ‘obstructs the victim’s capacity to access and enjoy his or her rights guaranteed under [A]rticle 14’.126

52  These arguments apply to both paragraphs of Article 4. If the State party fails, to make torture a criminal offence at all, any victim of torture has the right to raise this (p. 193) violation of Article 4(1) by means of an individual complaint. If the criminal code of a State party does contain the crime of torture but the respective authorities fail to punish the perpetrators of an act of torture with appropriate penalties, the victim of such an act has the right to submit an individual complaint alleging a violation of Article 4(2) in accordance with Article 22.

Nóra Katona

Footnotes:

1  SRT (Nowak) ‘Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment’ (2010) UN Doc A/HRC/13/39, para 47; see also Richard Carver and Lisa Handley (eds), Does Torture Prevention Work? (Liverpool University Press 2016) 85.

2  Guridi v Spain, No 212/2002, UN Doc CAT/C/34/D/212/2002, 17 May 2005; see also below § 49.

3  GA Res 3452 (XXX) of 9 December 1975.

4  Draft Convention for the Prevention and Suppression of Torture Submitted by the International Association of Penal Law (1978) UN Doc E/CN.4/NGO/213.

5  Draft Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Submitted by Sweden (1978) UN Doc E/CN.4/1285 (cited also: Original Swedish Draft).

6  Revised Text of the Substantive Parts of the Draft Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Submitted by Sweden (1979) UN Doc E/CN.4/WG.1/WP.1 (Cited also as Revised Swedish Draft).

7  Summary by the Secretary-General in Accordance with Commission Resolution 18 (XXXIV) of the Commission on Human Rights (1978) UN Doc E/CN.4/1314 (cited also: United States Draft).

8  Summary by the Secretary-General in Accordance with Resolution 18 (XXXIV) of the Commission on Human Rights (1979) UN Doc E/CN.4/1314/Add.1. See the New York Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, Including Diplomatic Agents (1973), annexed to UNGA Res. 3166 (XVIII) of 14 December 1973. 1035 UNTS 167.

9  The footnote read: ‘the term “complicity” includes “encubrimiento de la tortura.” ’ In the Spanish text: [Add at the end of paragraph 1: ‘o encubrimiento de la tortura’]. In the French text: [Add a foot-note reading: le term ‘complicité’ comprend ‘encubrimiento’ dans le texte espagnol’].

10  Report of the Working Group of the Commission on Human Rights (1980) UN Doc E/CN.4/1367.

11  Summary Record of the thirty-third Meeting of the Commission on Human Rights (1984) UN Doc E/CN.4/1984/SR.33, para 26.

12  A/C.3/39/L.63 and 64.

13  Report of the Third Committee, thirty-ninth Session (1984) UN Doc A/39/708.

14  E/CN.4/1314 (n 7).

15  See in details below Art 16 §§ 13–18.

17  eg CAT/C/SR.287, para 28; ‘provisions that criminalize and penalize acts of torture and other cruel, inhuman or degrading treatment or punishment’: CAT, ‘Concluding Observations: Congo’ (2015) UN Doc CAT/C/COG/CO/1, para 8; less explicitly in CAT, ‘Concluding Observations: Armenia’ (2012) UN Doc CAT/C/ARM/CO/3, para 10.

18  See eg CAT/C/SR.287, para 2; CAT, ‘Concluding Observations: Ukraine’ (2014) UN Doc CAT/C/UKR/CO/6, para 134; CAT, ‘Concluding Observations: Sweden’ (2002) UN Doc CAT/C/CR/28/6, para 7(a); CAT, ‘Concluding Observations: Kazakhstan’ (2014) UN Doc CAT/C/KAZ/CO/3, para 7(a); CAT, ‘Concluding Observations: Congo’ (2015) UN Doc CAT/C/COG/CO/1, para 8; CAT/C/ARM/CO/3 (n 17) para 10; see also Chris Ingelse, The UN Committee against Torture: An Assessment (Kluwer Law International 2001) 340 ff.

19  See also Nigel Rodley and Matt Pollard, ‘Criminalisation of Torture: State Obligations under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (2006) 2 EHRLR 115, 118.

20  Commission on Human Rights—Economic and Social Council, ‘Report on the 36th session (4 February–14 March 1980)’ (1989) UN E/CN.4/1408; see also below Art 16, §§ 5–12.

21  See Francesca Laguardia, ‘Deterring Torture: The Preventive Power of Criminal Law and its Promise for Inhabiting State Abuses’ (2017) 39 HRQ 189, 189ff.

22  Rodley and Pollard (n 19) 118; the inclusion of the obligation to criminalize also other forms of ill-treatment is not without precedence on the international level: thus, article 7 ICCPR requires States to penalize not only torture but also equally other forms of ill-treatment: UN Human Rights Committee (HRC), CCPR General Comment No 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment), 10 March 1992, para 13; also, while the ECHR, unlike the UNCAT, does not explicitly includes an obligation to criminalize torture, this obligation arises from the other obligations as the duty to protect against torture and other forms of ill-treatment as well as to investigate cases where any form ill-treatment may have occurred. As, also the ECtHR finds violations of Article 3 ECHR without distinguishing between torture and other forms of ill-treatment, an obligation should be seen in enacting legislation covering not only torture but also other forms of ill-treatment: Association for the Prevention of Torture (APT) and the Center for Justice and International Law (CEJIL),Torture in International Law: A Guide to Jurisprudence (APT and CEJIL 2008) 68 ff; more explicitly Article 6 IACPPT states that ‘[t]he States Parties likewise shall take effective measures to prevent and punish other cruel, inhuman, or degrading treatment or punishment within their jurisdiction’. Similarly, the African Commission has reaffirmed the States’ obligation to ‘prosecute and punish private actors who commit abuses’, and has thereby created the obligation to criminalize equally torture and other forms of ill-treatment: APT and CEJIL, Torture in International Law (n 22) 133.

23  See above ch (travaux) 2 §§ 3 and 5 of Art 4.

24  See Art 1; 3.1; Amnesty International (AI),Combating Torture and Other Ill-treatment: A Manual for Action (AI 2016) 266.

25  See Art 1 §§ 22 and 65 ff; see also Rodley and Pollard (n 19) 120; Ahcene Boulesbaa, The UN Convention on Torture and the Prospects for Enforcement (Martinus Nijhoff 1999) 14 ff.

27  CAT, ‘Concluding Observations: Cameroon’ (2010) UN Doc CAT/C/CMR/CO/4, para 10; CAT ‘Concluding Observations: Gabon’ (2013) UN Doc CAT/C/GAB/CO/1, paras 7–8; CAT, ‘Concluding Observations: El Salvador’ (2009) UN Doc CAT/C/SLV/CO/2, para 10.

28  See also the well-known case of the deputy director of the Frankfurt police, who ordered the application of torture for the purpose of extracting information from a kidnapper on the whereabouts of a kidnapped child: see Judgment against Wolfgang Daschner of 20 December 2004 of the twenty-seventh penal chamber, Landgericht (court) Frankfurt am Main, NJW 2005, 692. Ingelse (n 18) 340.

29  See above ch (travaux) 2 § 11 of Art 4.

30  eg CAT, ‘Concluding Observations: Azerbaijan’ (2003) UN Doc CAT/C/CR/30/1, para 5(b); see also J Herman Burgers and Hans Danelius, The United Nations Convention against Torture: A Handbook on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Martinus Nijhoff 1988) 130.

31  Burgers and Danelius (n 30) 130.

32  eg CAT/C/CR/30/1 (n 30) para 5(b); see also Ingelse (n 18) 340 with further references; Burgers and Danelius (n 30) 130.

33  eg CAT/C/SR.93, para 42; CAT/C/SR.247, para 16.   

34  CAT/C/GC/2 (n 16) para 26.

35  See eg CAT/C/SR.77, para 28; CAT/C/SR.105, para 5.

36  Rodley and Pollard (n 19) 123.

37  CAT, ‘Concluding Observations: Macedonia’ (2015) UN Doc CAT/C/MKD/CO/3, paras 15–16.

38  Rodley and Pollard (n 19) 123.

39  Burgers and Danelius (n 30) 129.

40  ibid.

41  eg CAT, ‘Concluding Observations: Burkina Faso’ (2014) UN Doc CAT/C/BFA/1, para 8; CAT, ‘Concluding Observations: Kazakhstan’ (2014) UN Doc CAT/C/KAZ/CO/3, para 9.

42  eg CAT, ‘Concluding Observations: Belarus’ (2011) UN Doc CAT/C/BLR/4, para 16.

43  eg CAT, ‘Concluding Observations: Kenya’ (2013) UN Doc CAT/C/KEN/CO/2, paras 6 and 7; CAT, ‘Concluding Observations: Sweden’ (2014) UN Doc CAT/C/SWE/CO/6-7, para 6.

44  eg CAT, ‘Concluding Observations: Albania’ (2012) UN Doc CAT/C/ALB/CO/2, para 8.

45  eg CAT/C/KAZ/CO/3 (n 41) para 9.

46  Rodley and Pollard (n 19) para 118.

47  See below Art 5.

48  CAT/C/SR.122, para 23; CAT/C/SR.123, para 26; CAT/C/SR.247, para 29; CAT/C/SR.249, paras 32, 42; CAT/C/SR.251, para 8; CAT/C/SR.253, para 4; CAT, ‘Report of the Committee Against Torture’ (1991) UN Doc A/46/46, para 163; CAT, ‘Report of the Committee Against Torture’ (1992) UN Doc A/47/44, para 167.

49  CAT, ‘Concluding Observations: Cuba’ (2012) UN Doc CAT/C/CUB/CO/2, para 7; CAT, ‘Concluding Observations: Lithuania’ (2014) UN Doc CAT/C/LTU/CO/3, para 9; CAT, ‘Concluding Observations: Switzerland’ (2015) UN Doc CAT/C/CHE/CO/7, para 7.

50  eg CAT/C/SR.268, para 2; CAT, ‘Concluding Observations: Bulgaria’ (2011) UN Doc CAT/C/BGR/CO/4-5, para 8; CAT, ‘Concluding Observations: Djibouti’ (2012) UN Doc CAT/C/DJI/CO/1, para 8; CAT, ‘Concluding Observations: Russian Federation’ (2012) UN Doc CAT/C/RUS/CO/5, para 7; see also SRT (Van Boven), ‘Report of the Special Rapporteur on the Question of Torture submitted in accordance with Commission Resolution 2002/38’ (2002) UN Doc E/CN.4/2003/68, para 26.

51  eg CAT, ‘Concluding Observations: Denmark’ (2016) UN Doc CAT/C/DNK/CO/6-7, paras 10, 11; CAT/C/KAZ/CO/3 (n 41) para 9.