Condensed: Torture is an intentional act or omission that inflicts severe physical or mental pain or suffering on a person (1) for the purposes of (a) obtaining information or a confession; (b) punishing, intimidating or coercing the victim or a third person ; or (c) discriminating based on any reason, and (2) by, at the instigation or with the consent or acquiescence of a public official or other persons acting in an official capacity . Examples of act or omission, that can inflict severe physical or mental pain or suffering, include beatings, mutilation, rape, electric chocks, deprivation of sleep and food, mock suffocation, mock executions, threat of physical injury and attacks or threats of attacks on family members or friends. Its prohibition is absolute and non-derogable. Comprehensive: Article 1 of CAT defines torture to mean: [A]ny act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. Torture is prohibited in international and regional human rights instruments.[1] The main elements of torture are:[2] (a) an act or omission that inflicts severe physical or mentalpain or suffering;[3] (b) intent (c) specific purpose (eg extracting a confession, obtaining information, punishment, intimidation, discrimination); and (d) involvement or acquiescence of a public official.
Severe physical or mental pain or suffering can be caused by for example beatings,[4] mutilation, rape,[5] electric chocks,[6] deprivation of sleep and food, mock suffocation,[7] mock executions,[8] threat of physical injury[9] and attacks or threats of attacks on family members or friends. Whether the severity threshold is met ‘depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim, etc.’[10] The ECtHR noted in Selmouni v France:[11] A large number of blows were inflicted on Mr Selmouni. Whatever a person’s state of health, it can be presumed that such intensity of blows will cause substantial pain … the applicant was dragged along by his hair … he was made to run along a corridor with police officers positioned on either side to trip him up … he was made to kneel down in front of a young woman to whom someone said ‘Look, you’re going to hear somebody sing’ … one police officer then showed him his penis, saying ‘Here, suck this’, before urinating over him; … he was threatened with a blowlamp and then a syringe … Besides the violent nature of the above acts, the Court is bound to observe that they would be heinous and humiliating for anyone, irrespective of their condition. The ECtHR noted that ‘the physical and mental violence … was particularly serious and cruel’ and held that it constituted torture.[12] There are divergent opinions on whether treatment must be ‘particularly serious and cruel’ to constitute torture or whether the distinguishing element between torture and inhuman treatment is specific purpose. According to the UN Special Rapporteur on Torture ‘[t]he beating of a detainee with a truncheon for the purpose of extracting a confession must be considered torture if it inflicts severe pain or suffering.’[13] In Khomidov v Tajikistan, it was alleged that Mr Khomidov was tortured with electric shocks and was beaten throughout the investigation, forcing him to sign written confessions … [he] was beaten with batons, and parts of his body were electrocuted with a metal bar, causing head and ribs injuries. … Mr Khomidov was put under psychological pressure also because the family of Mr and Mrs Pirnazarov, supported by the police, had set fire to his house and forced his wife and children to leave the premises, while the police illegally confiscated his car and the furniture of his house. His father's mill was destroyed and his animals were taken away; his father was beaten with a rifle butt. Mr Khomidov allegedly was kept informed of these incidents by the police in order to put him under additional pressure.[14] The HRC held that the ‘physical and psychological torture’ constituted a violation of article 7 of the ICCPR.[15] With regard to the participation of a public official the UN Special Rapporteur on Torture has noted that ‘[t]he Convention goes beyond the traditional concept of State responsibility and includes acts which are not directly inflicted by the State officials, but executed with their active or passive agreement or were possible to occur due to their lack of intervention, which would have been possible.’[16] General Comment 20 of the HRC notes that states have an obligation to ‘afford everyone protection through legislative and other measures as may be necessary against the acts prohibited by article 7, whether inflicted by people acting in their official capacity, outside their official capacity or in a private capacity.’[17] Legal framework:
Torture
Article 5 of the American Convention on Human Rights
Article 7 of the International Covenant on Civil and Political Rights
Article 1 of the Convention against Torture and other cruel, inhuman or degrading treatment.
Article 7, f. Lit the Statute of the International Criminal Court
[1] UDHR art 5; ICCPR art 7; Geneva Conventions of 1949; ACHPR art 5; ACHR art 5(2); ECHR art 3. See also Inter-American Convention to Prevent and Punish Torture, European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment; Robben Island Guidelines on Torture.
[2] Special Rapporteur on Torture A/HRC/13/39/Add.5 (2010) paras 30-39
[3] The Inter-American Convention to Prevent and Punish Torture provides in art 2 that the use of methods intended to obliterate the personality of the victim or to diminish his physical and mental capacities amounts to torture even if the method applied does not result in severe physical or mental pain or suffering.
[4]Muteba v Zaire communication 124/1982 (HRC 1984); Selmouni v France application 25803/94 (ECtHR 1999).
[5]Miguel Castro-Castro Prison v Peru (IACtHR 2006); Gómez Casafranca, v Peru.
[13] E/CN.4/2006/6 para 38. In contrast see eg the case law of the ECtHR starting with Ireland v UK application 5310/71 (ECtHR 1978) para 167 which considers torture to be particularly intense and cruel inhuman treatment.
[14]Khomidov v Tajikistan communication 1117/2002 (HRC 2004) paras 2.5 & 2.6.
[15] On psychological torture see also Estrella v Uruguay, Maritza Urrutia v Guatemala (IACtHR 2003), Akkoç v Turkey applications 22947/93; 22948/93 (ECtHR 2000).
[16] Special Rapporteur on Torture A/HRC/13/39/Add.5 (2010) para 39.
Torture is an intentional act or omission that inflicts severe physical or mental pain or suffering on a person (1) for the purposes of (a) obtaining information or a confession; (b) punishing, intimidating or coercing the victim or a third person ; or (c) discriminating based on any reason, and (2) by, at the instigation or with the consent or acquiescence of a public official or other persons acting in an official capacity .
Examples of act or omission, that can inflict severe physical or mental pain or suffering, include beatings, mutilation, rape, electric chocks, deprivation of sleep and food, mock suffocation, mock executions, threat of physical injury and attacks or threats of attacks on family members or friends. Its prohibition is absolute and non-derogable.
Comprehensive:
Article 1 of CAT defines torture to mean:
[A]ny act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
Torture is prohibited in international and regional human rights instruments.[1]
The main elements of torture are: [2]
(a) an act or omission that inflicts severe physical or mental pain or suffering;[3]
(b) intent
(c) specific purpose (eg extracting a confession, obtaining information, punishment, intimidation, discrimination); and
(d) involvement or acquiescence of a public official.
Severe physical or mental pain or suffering can be caused by for example beatings,[4] mutilation, rape,[5] electric chocks,[6] deprivation of sleep and food, mock suffocation,[7] mock executions,[8] threat of physical injury[9] and attacks or threats of attacks on family members or friends.
Whether the severity threshold is met ‘depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim, etc.’[10] The ECtHR noted in Selmouni v France:[11]
A large number of blows were inflicted on Mr Selmouni. Whatever a person’s state of health, it can be presumed that such intensity of blows will cause substantial pain … the applicant was dragged along by his hair … he was made to run along a corridor with police officers positioned on either side to trip him up … he was made to kneel down in front of a young woman to whom someone said ‘Look, you’re going to hear somebody sing’ … one police officer then showed him his penis, saying ‘Here, suck this’, before urinating over him; … he was threatened with a blowlamp and then a syringe … Besides the violent nature of the above acts, the Court is bound to observe that they would be heinous and humiliating for anyone, irrespective of their condition.
The ECtHR noted that ‘the physical and mental violence … was particularly serious and cruel’ and held that it constituted torture.[12] There are divergent opinions on whether treatment must be ‘particularly serious and cruel’ to constitute torture or whether the distinguishing element between torture and inhuman treatment is specific purpose. According to the UN Special Rapporteur on Torture ‘[t]he beating of a detainee with a truncheon for the purpose of extracting a confession must be considered torture if it inflicts severe pain or suffering.’[13]
In Khomidov v Tajikistan, it was alleged that Mr Khomidov
was tortured with electric shocks and was beaten throughout the investigation, forcing him to sign written confessions … [he] was beaten with batons, and parts of his body were electrocuted with a metal bar, causing head and ribs injuries. … Mr Khomidov was put under psychological pressure also because the family of Mr and Mrs Pirnazarov, supported by the police, had set fire to his house and forced his wife and children to leave the premises, while the police illegally confiscated his car and the furniture of his house. His father's mill was destroyed and his animals were taken away; his father was beaten with a rifle butt. Mr Khomidov allegedly was kept informed of these incidents by the police in order to put him under additional pressure.[14]
The HRC held that the ‘physical and psychological torture’ constituted a violation of article 7 of the ICCPR.[15]
With regard to the participation of a public official the UN Special Rapporteur on Torture has noted that ‘[t]he Convention goes beyond the traditional concept of State responsibility and includes acts which are not directly inflicted by the State officials, but executed with their active or passive agreement or were possible to occur due to their lack of intervention, which would have been possible.’[16] General Comment 20 of the HRC notes that states have an obligation to ‘afford everyone protection through legislative and other measures as may be necessary against the acts prohibited by article 7, whether inflicted by people acting in their official capacity, outside their official capacity or in a private capacity.’[17]
Legal framework:
Torture
Article 5 of the American Convention on Human Rights
Article 7 of the International Covenant on Civil and Political Rights
Article 1 of the Convention against Torture and other cruel, inhuman or degrading treatment.
Article 7, f. Lit the Statute of the International Criminal Court
[1] UDHR art 5; ICCPR art 7; Geneva Conventions of 1949; ACHPR art 5; ACHR art 5(2); ECHR art 3. See also Inter-American Convention to Prevent and Punish Torture, European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment; Robben Island Guidelines on Torture.
[2] Special Rapporteur on Torture A/HRC/13/39/Add.5 (2010) paras 30-39
[3] The Inter-American Convention to Prevent and Punish Torture provides in art 2 that the use of methods intended to obliterate the personality of the victim or to diminish his physical and mental capacities amounts to torture even if the method applied does not result in severe physical or mental pain or suffering.
[4] Muteba v Zaire communication 124/1982 (HRC 1984); Selmouni v France application 25803/94 (ECtHR 1999).
[5] Miguel Castro-Castro Prison v Peru (IACtHR 2006); Gómez Casafranca, v Peru.
[6] Muteba v Zaire.
[7] Medjnoune v Algeria communication 1297/2004 (HRC 2006) para 2.1.
[8] Muteba v Zaire.
[9] Estrella v Uruguay communication 74/1980 (HRC 1983).
[10] Selmouni v France para 100.
[11] Paras 102-103.
[12] Para 103.
[13] E/CN.4/2006/6 para 38. In contrast see eg the case law of the ECtHR starting with Ireland v UK application 5310/71 (ECtHR 1978) para 167 which considers torture to be particularly intense and cruel inhuman treatment.
[14] Khomidov v Tajikistan communication 1117/2002 (HRC 2004) paras 2.5 & 2.6.
[15] On psychological torture see also Estrella v Uruguay, Maritza Urrutia v Guatemala (IACtHR 2003), Akkoç v Turkey applications 22947/93; 22948/93 (ECtHR 2000).
[16] Special Rapporteur on Torture A/HRC/13/39/Add.5 (2010) para 39.
[17] HRC General Comment 20 para 2.