16 The Convention, strictly speaking, does not prohibit torture or cruel, inhuman or degrading treatment. A provision stating that no one shall be subjected to torture and cruel, inhuman or degrading treatment, as contained in Article 7 CCPR and similar (p. 78) provisions in regional human rights treaties, is missing in the CAT and had already been missing in the various proposals discussed during the drafting history.28 It is likely that such an individual right was taken for granted by the drafters and needs to be assumed to be implicit in the Convention.29 After all, in the Preamble the Convention explicitly refers to Article 7 CCPR and expresses the desire to make more effective the struggle against torture and cruel, inhuman or degrading treatment throughout the world.
17 The formulation of Article 2 (1) must be interpreted as including the obligation of States parties to respect and protect the human right not to be subjected to torture. But the main emphasis of this formulation, as in Article 16, is put on the positive obligation of States parties to fulfil.30 Article 2(1) CAT is drafted in similar words as Article 2(2) CCPR. The obligation to fulfil, derived from the latter provision, means to enact laws, to provide an effective remedy and procedural guarantees, to establish relevant legal institutions and other legislative, administrative, political, or judicial measures.31 Article 2(1) CAT puts the focus of the obligation to fulfil on effective measures to prevent acts of torture. This reflects the general object and purpose of the Convention, which is to strengthen the existing prohibition of torture by specific measures of criminal law aimed at deterring torture and other measures of a preventive nature.
18 The Committee has stipulated that the obligation to prevent torture and other ill-treatment under Articles 2 and 16 are ‘indivisible, interdependent and interrelated’32 and that the obligation to prevent cruel, inhuman or degrading treatment in practice very much overlaps and is largely congruent with the obligation to prevent torture.33 This is also reflected in the practice of the Committee, as it usually references Articles 2 and 16 together in its recommendations to States as part of the Concluding Observations.
19 The Committee has clarified in its General Comment on Article 2 that States parties are obliged to undertake ‘effective measures to prevent public authorities and other persons acting in an official capacity from directly committing, instigating, inciting, encouraging, acquiescing in or otherwise participating or being complicit in acts of torture’ as laid down in the Convention’.34 The Committee has emphasized that States bear responsibility not only for the acts and omissions of their officials, but also for others, such as agents, private contractors, and others acting in official capacity or on behalf of the State, in conjunction with the State under its direction or control, or otherwise under colour of law.35 States parties not fulfilling these obligations violate the Convention.
20 The question of whether the violation of the right not to be subjected to torture or cruel, inhuman or degrading treatment is at the same time a violation of the CAT and whether a victim of an act of torture or cruel, inhuman or degrading treatment can (p. 79) submit an individual complaint to the CAT Committee under Articles 2 or 16, respectively by now is clearly settled:36 not only Pieter Kooijmans, the first UNSRT, answered this question in the affirmative by referring to the implicit obligation of States under Article 2(1),37 but extensive case law of the Committee in which it has found a violation of Article 2(1) confirm this.
21 Generally, Article 2(1) is seen as an umbrella clause encompassing all the obligations to prevent torture as included but not limited to the in various provisions of the Convention, and Article 16 as constituting an obligation for States parties to prevent cruel, inhuman and degrading treatment. The typical obligations to prevent torture can be found in Articles 10 (education and training of law enforcement and other personnel), 11 (systematic review of interrogation methods), 12 (ex officio investigation of torture cases), 13 (investigation of allegations by torture victims), and 15 (non-admissibility of evidence extracted by torture in any proceedings). But also the prohibition of refoulement in Article 3 and the obligation of States to make torture a criminal offence with appropriate penalties in Article 4 and related provisions about universal and other forms of criminal jurisdiction in Articles 5 to 9 have a strong preventive character. Even Article 14, which provides for the right of torture victims to redress, can be interpreted as a measure with a deterrent effect aimed at preventing torture in the future.38 If the individual torturers were held accountable to pay full compensation for all long-term rehabilitation costs of their torture victims, this would probably have a stronger deterrent effect than many criminal sanctions.39
22 The understanding of Article 2 as an umbrella clause is partly, but not consistently reflected in the Committee’s individual complaints procedure: when finding violations of other Articles of the Convention, the Committee in most cases (except with regard to Article 3) seems to find a violation of Article 2 (1).40 At the same time, the Committee has found numerous violations of the Convention, especially with regard to Article 3, without finding a violation of Article 2(1).41 When consistently interpreting Article 2(1) as umbrella clause of the Convention, in principle, every time there is an act of torture, the Committee would actually also have to find a violation of Article 2(1).
23 Another question has been whether every single act of torture means that the State concerned has failed to take effective measures to prevent torture and, therefore, violated its respective obligation in Article 2(1). The practice of the Committee differs in this (p. 80) regard: In a case of torture it usually finds both, a violation of Article 1, as well as Article 2(1).42 However, it has also found violations of Article 2(1) read in conjunction with Article 1, but not of Article 1,43 as well as a few cases where it found a violation of Article 1 and not of Article 2.44 In Ali Ben Salem v Tunisia and Saadia Ali v Tunisia, where the Committee only found a violation of Article 1, but rejected finding a violation of Article 2, it did not dispute that a case of torture occurred but concluded—without any more detailed argumentation or analysis—that ‘the documents communicated to it furnish no proof that the State party has failed to discharge its obligations under these provisions of the Convention’.45 This conclusion is insofar surprising, as that every single act of torture means that the State has failed to take effective measures to prevent torture and, therefore, violated its respective obligation in Article 2(1). As already concluded above,46 it would be expected that in a case of torture, the Committee finds a violation of Article 2 (1) in conjunction with Article 1.47
24 While Article 2(1) stipulates that each State party has to take effective measures to prevent torture, there is no explicit reference in Article 2(1) to the time frame to be applied in implementing these measures. The question therefore arises as to whether such measures can be implemented gradually through progressive implementation or whether States parties are required to meet their obligations immediately.48 In general, the Committee has not accepted the principle of progressive implementation. It has rejected the argument that compliance with Article 2 was dependent on ‘… limited budgetary resources or limited professional awareness among staff’.49 The Committee, however, has not always interpreted this provision as to require strict immediate implementation. In its concluding observations to Kazakhstan, it recommended that the State party proceed ‘promptly’ to amend its domestic penal law to include the crime of torture, consistent with the Convention, and to take ‘urgent and effective steps’ to ensure the investigation, prosecution, and punishment regarding torture allegations.50 In contrast, in the case of Romania, the Committee stated that ‘the existing Government could not be seriously blamed, because it was quite clear that prison conditions could not be changed overnight and that considerable financial investment was needed. Nevertheless, the Romanian (p. 81) authorities should do everything they could to demonstrate their intention to improve the situation.’51 The Committee therefore has allowed some degree of flexibility concerning the time frame of implementation. There may be circumstances in which a State is allowed, temporarily, some latitude in its compliance, while at the same time the State has an obligation to continually improve its national laws as well as the practical application of these laws in line with the Convention and the Committee’s concluding observations and views adopted on individual communications.52 An act of torture, however, can never be justified. The Committee has made clear that ‘torture should be prohibited whatever the stage of development of a country and whatever the nature of the offence being investigated’.53
25 Boulesbaa rejects the idea of progressive implementation but at the same time asserts that the obligation of States to prevent torture is not absolute: ‘The obligation is rather to take steps to achieve reasonable results in the prevention of torture’.54 This contradiction is based on a simple misunderstanding of the obligations of States to respect and ensure human rights. Of course, the obligation of States to refrain from practicing torture (obligation to respect), which is also implicit in Article 2(1) as we have seen above, is absolute and, therefore, not subject to progressive implementation. Every individual case of torture, as defined in Article 1, constitutes a violation of this absolute and non-derogable right. But positive obligations of States, be they obligations of conduct or result, aimed at fulfilling a certain human right by means of legislative, administrative, judicial, political, and other measures are always relative and, therefore, subject to the principle of progressive implementation. Taking into account the indivisibility and interdependence of all human rights, this principle can no longer be applied exclusively to economic, social, and cultural rights, but must be applied to civil and political rights as well.55 Just to give an example: if there exists a reasonable training programme on how to prevent torture for prison and police officials, States parties are still under an obligation under Article 10 CAT to improve this training programme further in accordance with ‘good practices’ by means of ‘progressive implementation’ and to report on these ‘new measures taken’ to the Committee in accordance with Article 19(1). But the total absence of any anti-torture training would clearly violate the State obligation under Article 10 as well as its general obligation to take effective administrative measures to prevent acts of torture under Article 2(1).
26 While the Committee has recognized that States parties may choose the measures through which they implement their obligations, it has equally emphasized that a States party must take measures that are effective and consistent with the object and purpose of the Convention.56 In the reporting procedure, the Committee interprets this provision in the broadest sense and requests States parties to take a variety of measures aimed at preventing torture.