Appendix: UN State Reports

Transcription

1 Appendix: UN State Reports The following chart summarizes the definitions of torture adopted in over 60 countries around the world. The chart identifies and briefly summarizes each country s definition of torture, its legislation prohibiting torture, and any available sanctions for violations of the laws against torture. All the information in the Appendix has been drawn from the State Reports submitted to the U.N. Committee on Torture between 2000 and 2005 by signatories to the Convention Against Torture ( CAT ). The individual state reports are available at Unless otherwise noted, the chart s citations are to the most recent state report as of mid Countries that reported prior to 2000, or never, as well as those with reports not available in English or not available in the on-line U.N. Treaty Database, are not included. The chart does not include legislation that happens to cover acts of torture but does not specifically reference or prohibit torture. Thus, laws criminalizing cruel and unusual treatment without mention of torture are not included, nor are provisions that generally protect basic human rights or criminal procedure provisions that may assist in the prevention of torture but do not explicitly address it. If a State Report states that the country uses the CAT definition of torture, this statement is included in the chart even if in practice the definition has been altered or substantively reinterpreted. Finally, this is a compilation of information provided by the countries themselves and is limited to the law on the books; it does not analyze the enforcement or efficacy of the laws it describes. FLOERSHEIMER CENTER OCCASIONAL PAPERS A1

2 COUNTRY DEFINITION LEGISLATION SANCTIONS AVAILABLE ALBANIA None listed. Constitution, Art. 25: Torture and other cruel, degrading and inhuman behavior are prohibited. ( 3) General Prison Regulation, Art. 48: Prison staff are forbidden to perform actions against inmates, [including] cruel or degrading punishment or treatment, as well as any kind of torture, that is not based on law. ( 27) Law No of 25 February 1998: Police must follow legal norms and not use torture on detainees. ( 73) Criminal Code, Art. 86: Torture (also degrading and inhuman treatment) is punished by 5-10 years imprisonment. ( 116) Criminal Code, Art. 87: Torture causing a serious injury or death is punished by years imprisonment. ( 117) Criminal Code, Art. 50: When the criminal act is committed savagely and ruthlessly, the punishment is aggravated. ( 58) Law No of 24 January 2001: Kidnapping or taking hostages with physical or psychological torture is punished by at least 20 years imprisonment; if death results, life imprisonment. ( 63) A2 FLOERSHEIMER CENTER OCCASIONAL PAPERS

3 ARGENTINA None listed. Amended Constitution of 1994, Art. 75, 22: Gives treaties precedence over laws and conferred constitutional rank on a number of human rights instruments, including the CAT. ( 2) Criminal Code of the Nation, Arts. 3, 5, 144: Criminalizes torture. ( 44) Constitutions of individual provinces such as Chaco, San Luis, and Chubut, contain specific provisions criminalizing torture. ( 45(a)-(b), 509) None listed. AUSTRIA None listed. All acts described as torture in the Convention and liable to punishment are also punishable in Austria, irrespective of the motives given as examples in article 1, paragraph 1, of the Convention; the pain or suffering inflicted need not be severe (aiguë) either. The punishment of torture is thus to some extent wider under Austrian criminal law than the definition of torture in the Convention. ( 8) Penal Code: All acts that may be described as torture within the meaning of article 1 of the Convention were already punishable under the Austrian Penal Code prior to the ratification of the Convention and threatened with court sanctions, which take into account the severity of the offence. ( 6) None listed. FLOERSHEIMER CENTER OCCASIONAL PAPERS A3

4 COUNTRY DEFINITION LEGISLATION SANCTIONS AVAILABLE AZERBAIJAN None listed. Constitution, Art. 46: The State shall protect the dignity of the individual and there can be no justification for affronts to human dignity. No one may be subjected to cruel treatment or torture or to degrading treatment or punishment. No medical, scientific, or other forms of experiments may be conducted on any persons without their consent. ( 2) Criminal Code, Arts. 13 & 133: Establishes criminal liability for torture and cruel treatment. ( 3) Code of Criminal Procedure and Criminal Code, Art. 15: Prohibits torture and other cruel, inhuman or degrading treatment or punishment in criminal proceedings and lists actions by public officials that fall under this category. ( 3) None listed. A4 FLOERSHEIMER CENTER OCCASIONAL PAPERS

5 BAHRAIN None listed. Constitution, Art. 19: No one may be subjected to physical or mental torture. ( 44) Constitution, Art. 31: The prohibition of torture is one of the constitutional principles which all State authorities have a duty to enforce. ( 44) National Action Charter of 2001, I and II ( 3): Guarantees right to not be mentally or physically tortured, makes confessions obtained under torture or threats void, and guarantees the right of prisoners to not be tortured, as well as guarantees punishment for those convicted of torture. ( 59) Penal Code, Art. 19: A torture victim has the right of self-defense when an officer is deliberately causing him harm. ( 67) Penal Code, Art. 208: It is a crime for any public official indirectly or directly, to use torture, force or threats against an accused person, a witness, or an expert in order to induce that person to confess to an offence or to proffer as a result of statements or information relating thereto. ( 61) Penal Code, Art. 208: Punished by life imprisonment if death results. ( 61) Penal Code, Art. 49: Torture is punishable by 3 to 15 years imprisonment, or life imprisonment if death results. ( 73) Penal Code, Art. 232: Imposes penalty of imprisonment of at least 6 months if victim s integrity is damaged as a result of the torture. ( 62) FLOERSHEIMER CENTER OCCASIONAL PAPERS A5

6 COUNTRY DEFINITION LEGISLATION SANCTIONS AVAILABLE Penal Code, Art. 232: Imposes penalties for anyone who uses torture, force, or threats to convince an accused, witness, or expert to confess or to induce statements or information. ( 62) The CAT has the force of law the same as the country s other laws. Thus, any failure to comply therewith constitutes a breach of the law and entails criminal responsibility if a criminal offence has been committed. It also entails legal liability for any damage caused. ( 50, 54-56) A6 FLOERSHEIMER CENTER OCCASIONAL PAPERS BELGIUM The definition of torture is not incorporated into the Belgian Penal Code. ( 3) Criminal Code, Art. 347: Acts of torture constitute aggravating circumstances in offences relating to hostage-taking. ( 18) Criminal Code, Art. 376: Relates to rape or indecent assault, aggravated by acts of physical torture. ( 76) Criminal Code, Art. 438: Criminalizes torture against a prisoner. ( 74) Criminal Code, Art. 438: Forced labor for 10 to 15 years; forced labor for 15 to 20 years if it caused an incurable disorder, permanent inability to work, loss of the use of an organ, or a serious mutilation. ( 74)

7 BOLIVIA None listed. Constitution, Art. 12: Any kind of torture, coercion, extortion or other form of physical or moral violence is prohibited, under penalty of immediate removal from office and without prejudice to the sanctions that may be incurred by anyone who applies, orders, instigates or consents to them. Protection against torture is mandatory. ( 4, 30) Code of Punishment: Characterizes torture as an offence, so that both public officials and private individuals must comply with this domestic law. ( 30) Penal Code, Art. 295 (Harassment and Torture): Criminalizes harassment and torture of detainees. ( 14) Code of Criminal Procedure, Art. 13: Any evidence obtained by torture, ill-treatment, coercion, threats, deceit or violation of the fundamental rights of the person, or obtained through information originating in an unlawful procedure or means, shall be disqualified. ( 9) Constitution, Art. 12: Penalty of immediate removal from office and without prejudice to the sanctions that may be incurred. ( 4) Penal Code, Art. 295 (Harassment and Torture): Any official who harasses a detainee or allows him to be harassed shall be punished with imprisonment for between six months and two years. If the official inflicts any kind of suffering or torture on the detainee, the penalty shall be increased to between two and four years of imprisonment. If the torture causes injuries, the penalty shall be imprisonment for between two and six years; if it causes death, the penalty shall be 10 years rigorous imprisonment. ( 14, 88) FLOERSHEIMER CENTER OCCASIONAL PAPERS A7

8 COUNTRY DEFINITION LEGISLATION SANCTIONS AVAILABLE BRAZIL Law 9455/97: It is a crime of torture to coerce someone with the use of violence or grave threat, causing physical or mental suffering: (a) with the intent of obtaining information, declaration or confession from the victim or third party; (b) to provoke action or omission of criminal nature, and (c) due to racial or religious discrimination. It also constitutes a crime of torture to submit someone, under his custody, power or authority, with use of violence or serious threat to intense mental or physical suffering, as a means of applying personal punishment or as a preventive measure. ( 73) Code of Criminal Procedure, Art. 296 (Arrest): Prohibits inflicting, instigating or tolerating any act of harassment, torture or other cruel, inhuman or degrading treatment or punishment, both at the time of arrest and during the time of detention. ( 11) Constitutions of individual provinces such as La Rioja, Formosa, and Jujuy, contain specific provisions criminalizing torture. Constitution of 1988, Art. 5, III: Repudiates torture or any other inhuman or degrading treatment. ( 51(d)) Constitution of 1988, Art. 5, XLIII: Punishment for torture shall be considered by law as not subject to bail, to grace or amnesty. ( 51) Law 9455/97: Criminalizes torture. ( 73) Law 9455/97, 2: Conviction of torture generally carries a prison term of 2 to 8 years. Those who absent themselves before the practice of torture, when he/she was able to prevent it or ascertain it, is subjected to imprisonment for 1 to 4 years. ( 74) Law 9455/97, 6: When serious bodily harm results from torture, the penalty for the perpetrator is 4 to 10 years, and in the event of death, up to 16 years. Punishment may increase by 1/6 to 1/3 of the sentence if the torture is perpetrated: (a) by a public agent; (b) against children, pregnant women, the impaired, or adolescents; (c) upon kidnapping. Crimes of torture are not subject to bail, to grace or amnesty. ( 74) A8 FLOERSHEIMER CENTER OCCASIONAL PAPERS

9 BULGARIA Bulgarian Constitution, Art. 5, 4: Bulgaria uses the CAT definition of torture. ( 9) None listed. None listed. CAMBODIA Cambodia uses the CAT definition of torture. ( 13) Criminal Law, Art. 12: No detainee shall be subjected to cruel, inhumane or degrading treatment or punishment, nor be beaten or tortured. Each detainee must have access to appropriate medical care. Prisoners must not be shackled or kept in isolation, whether they are in pre-trial detention or already sentenced. In no case shall the family of a detainee or prisoner be harassed as a result of the prisoner s behavior. ( 4) Criminal Law, Art. 12: No detainee shall be subjected to cruel, inhumane or degrading treatment or punishment, nor be beaten or tortured. ( 17) Transitional Criminal Law, Arts. 39 and 27: The victim may file claims and seek damages against the perpetrator, co-offender and accomplice. A detainee or prisoner shall also have the right to complain or denounce any officer who commits torture or acts of cruelty against him or her. ( 22) None listed. FLOERSHEIMER CENTER OCCASIONAL PAPERS A9

10 COUNTRY DEFINITION LEGISLATION SANCTIONS AVAILABLE CAMEROON Criminal Code, Art. 132, (5)(a) and (b): Cameroon uses the CAT definition of torture. Any act by which severe pain or suffering, whether physical, mental or psychological, is intentionally inflicted on a person by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity, 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. The word torture thus defined does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. ( 48) Criminal Code, Art. 132: Imposes penalties on persons who commit torture; declares the absolute right of every person to be protected against torture. ( 23(a)) Criminal Code, Art. 132, 5(c): No exceptional circumstances may be invoked to justify torture ( 142) Criminal Code, Art. 132, 5(d): Orders from a superior officer or State authority may not be used as a justification for torture. ( 143) The use of violence or torture to extract confessions in the course of investigations is strictly prohibited. Confessions obtained in this way are null and void, as are the subsequent proceedings. ( 124) Cameroon Supreme Court, Ruling No. 4, 7 October 1969: A civil servant or official who has committed torture will not be justified or excused because they were acting under the orders of a superior unless they were coerced. ( 127) Criminal Code, Art. 132: Life imprisonment if death is caused; or 10 to 20 years imprisonment if the victim loses full or partial use of a limb, organ or sense. If the victim is prevented from working, temporarily or permanently, the perpetrator is fined and/or imprisoned to 2 to 10 years. ( 151) Code of Criminal Investigation, Art. 2, 2: Any person who is a victim of torture may commence civil proceedings for compensation; if the civil party dies, the heirs may bring the action. ( 206) Regulation No. 97/01, 4 April 1997: Courts may provide torture victims who are civil parties in criminal proceedings against their perpetrators provisional decisions concerning costs and expenses necessitated by emergency care. ( 210) To circumvent the possible insolvency of the official, the victim has the choice of proceedings against the official before the judicial court and proceedings against the authority before the administrative court. ( 212) A10 FLOERSHEIMER CENTER OCCASIONAL PAPERS

11 CANADA Criminal Code, 269.1: Defines torture as any act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person, for a purpose including obtaining from the person or from a third person information or a statement; punishing the person for an act that the person or a third person has committed or is suspected of having committed; and intimidating or coercing the person or a third person; or for any reason based on discrimination of any kind, but does not include any act or omission arising only from, inherent in or incidental to lawful sanctions. (4th State Report, 14) Criminal Code, 269.1: Criminalizes torture as a specific offence. (4th State Report, 19) Canadian Forces Code of Conduct: Any form of abuse, including torture, is prohibited. (4th State Report, 18) Criminal Code, 7(3.71): Provides that war crimes and crimes against humanity are criminal offences. (4th State Report, 20) Crimes Against Humanity and War Crimes Act, 4, 6: Crimes against humanity (defined as including torture) committed both in and outside of Canada are indictable offences. (4th State Report, 54, 57) Constitutions of individual provinces and territories such as Prince Edward Island, Nova Scotia, Québec, and Yukon, contain specific provisions criminalizing torture. (4th State Report, 229, 241, 286, 422) Criminal Code, 269.1: Torture is punished by a maximum penalty of 14 years imprisonment. (4th State Report, 378) Crimes Against Humanity and War Crimes Act, 4(2): Penalty for persons guilty of committing genocide, a crime against humanity or a war crime, is imprisonment for life, if an intentional killing forms the basis of the offence, and is liable to imprisonment for life in any other case. (4th State Report, 56) Crimes Against Humanity and War Crimes Act, 30, 32: Recognizes the need to provide restitution to victims of torture provide for the establishment of a Crimes Against Humanity Fund The Attorney General of Canada would have the discretion to make payments out of the Fund in accordance with a request from the International Criminal Court or to appropriate beneficiaries, including the victims and their families. (4th State Report, 168) FLOERSHEIMER CENTER OCCASIONAL PAPERS A11

12 COUNTRY DEFINITION LEGISLATION SANCTIONS AVAILABLE CHILE Chile uses the CAT definition of torture. ( 27, 54) Code of Criminal Procedure, Art. 323: Judges are obligated to take measures to ensure that detainees have not been subjected to or threatened with torture in order to make a confession. ( 29) Penal Code, Art. 150 A: Criminalizes torture that causes either physical or mental injury. ( 55) Penal Code, Art. 150 A: Establishes special penalties for public employees. Public employee with knowledge of conduct but failed to prevent or terminate it when he had the power to do so, receives penalty reduced by one degree. Using torture to force victim to make a confession, statement, or provide information results in aggravated penalties ranging from 3 to 10 years imprisonment. Torture causing serious injury to, or the death of, a detainee results in aggravated penalties ranging from 5 to 15 years imprisonment if this result is attributable to negligence or imprudence on the part of the public employee. Penal Code, Art. 150 B: Penalties for persons who are not public employees shall range from 61 days to 3 years imprisonment, or 541 days to 5 years imprisonment, or 3 years and 1 day to 10 years imprisonment depending on the offence committed punishable under the various subparagraphs of Art. 150A. ( 55) Code of Criminal Procedure, Art. 84(2): Penalties for prison officials found guilty of criminal illtreatment include suspension or temporary retirement, fine, reprimand, and dismissal. ( 97) A12 FLOERSHEIMER CENTER OCCASIONAL PAPERS

13 Penal Code, Arts : Penalty for attempt to commit an offence of torture and also involvement in the offence as an accomplice or accessory is reduced by one or two degrees from the general punishment. ( 56) COLOMBIA Penal Code, Art. 279, Torture: Anyone who subjects another person to severe physical or mental pain or suffering with the aim of obtaining information or a confession from that person or a third person, punishing that person for an act he or she has or is suspected to have committed, or intimidating or coercing that person for any reason involving any type of discrimination. Any person who causes severe physical suffering for purposes other than those described above shall be liable to the same punishment. Pain or suffering which are caused solely by lawful punishments or which are the normal or chance result of such punishments shall not be considered to constitute torture. ( 121) Penal Code, Art. 279, Torture: Criminalizes torture. ( 121) Penal Code, Art. 279, Torture: Penalties of between 8 and 15 years imprisonment, a fine of 800 to 2,000 times the minimum monthly wage, and disqualification from the exercise of public rights and duties for the same period as the term of imprisonment. ( 121) FLOERSHEIMER CENTER OCCASIONAL PAPERS A13

14 COUNTRY DEFINITION LEGISLATION SANCTIONS AVAILABLE COSTA RICA CROATIA The existing Criminal Code of Costa Rica does not define torture as such. ( 15) Criminal Code, Art. 176: An official or any other person who, acting with the encouragement or the express or tacit approval of an official person, causes serious bodily or physical pain to a person with the purpose of obtaining from this person or some other person information or a confession, or with he intention to punish this person for a criminal act committed by this person herself/himself or some other person, or is under suspicion of having committed a criminal act, or with purpose of intimidating this person or to put her/him under pressure, or owing to any other reason based on any other form of discrimination. ( 12) Constitution, Art. 40: No one may be subjected to cruel or degrading treatment, or to life imprisonment, or to the penalty of confiscation. Any statement obtained by means of force is null and void. ( 3) Constitution, Art. 17, 3: Constitutional ban on torture cannot be avoided even under exceptional circumstances. Criminal Code, Art. 176: Criminalizes torture and other cruel, inhuman or degrading treatment or punishment. ( 54) Law on the Police Force: All civil servants and employees of the Ministry of the Interior have a duty to protect and preserve human life and dignity and that they may use only those measures and coercive means which are specified by law, and the use of which has the least damaging effect, in performing their official duties. ( 23) None listed. Criminal Code, Art. 176: Provides for penalty of 1-8 years imprisonment. ( 12) Victims of torture have the right to file administrative complaints, to appeal to the Attorney-General s Office, to file criminal charges with Attorney General or on their own, and to receive compensation. ( 19, 92-93) A14 FLOERSHEIMER CENTER OCCASIONAL PAPERS

15 CYPRUS None listed. Victims of torture may complain to the National Institution for the Protection of Human Rights. ( 61) None listed. CZECH REPUBLIC None listed. Act No. 140/1961 Coll., the Penal Code: He who shall cause to another person physical or mental suffering through torture or other inhuman and cruel treatment in connection with the exercise of his powers of a State authority, local government body, or a court, shall be punished. ( 3) DEMOCRATIC REPUBLIC OF CONGO Penal Code, Art. 259a: Criminalizes torture. ( 84) None listed. Constitution of 15 March 1992, Art. 16: All acts of torture and all cruel, inhuman, or degrading treatment shall be prohibited. ( 20) Penal Code 140/1961 Coll.: Penalty of imprisonment for 6 months to 3 years; 1 to 5 years imprisonment if act committed as a public official, together within at least 2 other persons, or who repeats the act over a long period of time; otherwise, 5-10 years if grievous bodily harm; if death caused by act, 8-15 years. ( 3) Act No. 82/1998: Victim of torture may recover damages if torture is caused by an unlawful decision by a court, another state authority, or local government body, or by an unauthorized official practice. ( 111) Victims beneficiaries can also get benefits. ( 116) None listed. FLOERSHEIMER CENTER OCCASIONAL PAPERS A15

16 COUNTRY DEFINITION LEGISLATION SANCTIONS AVAILABLE DENMARK Denmark does not define torture. (3rd State Report, 31) The Government is of the opinion that Denmark fully meets the obligations following from the Convention. Similarly, the Convention can be relied on before and is applied by Danish courts in the interpretation and application of Danish law. The Government thus still finds that the Criminal Code must be presumed to provide requisite authority for imposing a suitably severe penalty in case of torture, including mental torture. ( 109, 115) [A]n order from a superior or a public authority cannot be relied on to justify torture. (3rd State Report, 12) Criminal Code, Section 244: This provision can be invoked in case of mental torture [because] the offence would normally be an infringement of the physical integrity covered by the expression otherwise attacks another person s body. (3rd State Report, 34) Act on Compensation from the State to Victims of Criminal Offences: A torture victim will have a claim for compensation against the perpetrator and, additionally, the aggrieved party might receive compensation from the State if, for instance, the perpetrator is not found or if he or she does not have enough money to pay the compensation. (2nd State Report, 50) A16 FLOERSHEIMER CENTER OCCASIONAL PAPERS

17 ECUADOR EGYPT Ecuador uses the CAT definition of torture. ( 5) The provisions of Egyptian law are broader and more general than those of the Convention, since article 1 of the latter defines torture as any act by which severe pain or suffering is inflicted, whereas Egyptian law imposes no prerequisites concerning the degree or extent of pain or suffering. (3rd State Report, 49) In order for the offence of torture to obtain, Egyptian law does not Constitution, Art. 23(2): The following are prohibited: cruel punishment, torture; all treatment that is inhuman or degrading, or involves physical, psychological or sexual violence or coercion, or the improper use of genetic material. Genocide, torture, enforced disappearance, abduction and homicide for political reasons of belief are imprescriptible with regard to both proceedings and penalties. Such offences may not be the subject of a pardon or amnesty. In such cases compliance with the orders of a superior shall not constitute exemption from liability. ( 7) Constitution, Art. 4: Trials for the most serious offences, including torture, may be expedited. ( 15) Penal Code, Art. 126: Any public servant or official who orders, or participates in, the torture of an accused person with a view to inducing the said person to make a confession shall be punished. (3rd State Report, 44) Penal Code, Art. 282, 2: In all cases, anyone who unlawfully arrests a person and threatens to kill him or subjects him to physical Penalties for torture apply to both the person giving the illegal order as well as the person executing it. ( 35) Egyptian Constitution, Art. 57: Victims of torture have the right to fair compensation. (3rd State Report, 42(c), 57(c)). Penal Code, Arts. 126, 282: Punishment of hard labor or imprisonment for 3 to 10 years. If the victim dies, the penalty shall be that prescribed for premeditated murder. Punishment of 15 years hard labor for acts or threats of FLOERSHEIMER CENTER OCCASIONAL PAPERS A17

18 COUNTRY DEFINITION LEGISLATION SANCTIONS AVAILABLE stipulate that a specific degree of severe pain or suffering from torture should occur or that the torture should leave marks. As such, the offence of torture obtains however slight or negligible the pain may be and whether or not the torture leaves marks. (3rd State Report, 47(c)) Any act of torture is a criminal offence, whoever the author or instigator may be and regardless of whether or not the victim is left with any physical, moral or psychological traces and whether or not a confession, true or false, is obtained. ( 51) Egyptian Penal Code: Torture involves an act carried out by a member of a public authority or by an individual, whether during the arrest, confinement or imprisonment of a person in the legally prescribed circumstances or otherwise. (3rd State Report, 47(a)) Penal Code, Art. 126: Since the Egyptian Penal Code does not specifically describe or define the acts or actions which occasion torture, any act or action which results in physical, psychological or moral torture is a punishable act. (3rd State Report, 47(b)) torture shall be sentenced to hard labour. (3rd State Report, 44) Egyptian Constitution, Art. 57; Code of Criminal Procedure, Art. 259: There is no statute of limitations on civil or criminal proceedings regarding constitutional rights, including proceedings pertaining to torture. (3rd State Report, 42(b), 56; see also 47(d), 72, 116) The order of a superior does not legitimize torture, nor is it an excuse or justification. ( 51) Rules against torture apply even in states of emergency. ( 47) Egyptian Constitution, Art. 42: Confessions extracted under torture or duress, even if they are true, are deemed null and void. ( 47(d)) torture carried out by a public servant or on his orders; life of hard labor if the torture results in the death of the victim. (3rd State Report, 44, 52) A18 FLOERSHEIMER CENTER OCCASIONAL PAPERS

19 ESTONIA None listed. Constitution, Chapter II, Art. 18: No one shall be subjected to torture or to cruel or degrading treatment or punishment. ( 3) FINLAND Finnish Penal Code contains no specific definition of torture nor separate provisions on the offence of torture. ( 92) Code of Criminal Procedure, Art. 9: No one may be subjected to torture, cruel or inhuman forms of treatment. ( 13) Criminal Code, Art. 114: Criminalizes the offence of torture. ( 37) Penal Code, Art. 126: Torture, committed by, or on the order of a public official is a criminal offence. ( 52) Criminal Code, Art. 176: Criminalizes torture of people in custody in penal institutions. ( 37) Finland has no law criminalizing torture. All the acts referred to in the Convention [CAT] are punishable under Finnish law notwithstanding the fact that there are no provisions defining the crime of torture. ( 93) None listed. A public official guilty of torture even without the existence of specific elements of crime or scale of sentencing in the Penal Code, be subject to a very severe sentence. The mere fact that the offender is a public official would increase the normal maximum sentence to be imposed for assault, by two to three years. Considering that the court would most likely consider torture a cruel and therefore aggravated FLOERSHEIMER CENTER OCCASIONAL PAPERS A19

20 COUNTRY DEFINITION LEGISLATION SANCTIONS AVAILABLE FRANCE French legislation does not contain any definition of torture within the meaning of the Convention. ( 9) Ministry of Justice Circular of 14 May 1993 on the New Criminal Code: Indicates that the provisions of the new Criminal Code are far wider in scope than those of the Convention, which concern only acts committed by a public official for specified purposes. ( 9) Constitution, Art. 55: Treaties or agreements duly ratified or approved shall, upon their publication, have an authority superior to that of laws, subject, for each agreement or treaty, to its application by the other party. ( 2) Criminal Code, Arts & 222 3: Criminalizes acts of torture committed by officials. ( 14) Criminal Code, Arts : Provides that attempted torture and complicity in torture are punishable in the same way as torture itself. ( 55) Criminal Code, Art : Torture and inhuman acts may also count as constituent elements of a crime against humanity. (56) Code of Criminal Procedure, Arts & 689-2: Provides jurisdiction to prosecute and try anyone accused of committing torture outside French territory. ( 10) assault, the maximum sentence would be 13 years imprisonment. ( 94) Criminal Code, Art : The subjection of persons to torture or to acts of barbarity shall be punishable by 15 years rigorous imprisonment. ( 14, 51) Criminal Code, Art : The offence referred to in article shall be punishable by 20 years rigorous imprisonment if committed: In or in connection with the performance of his or her functions or duties by a person vested with public authority or a public servant. ( 14, 60) Criminal Code, Art : The penalty increases to 30 years imprisonment if the offense is committed against a child or results in mutilation or permanent disability. ( 60(b)) Criminal Code, Art : The penalty increases to life imprisonment if the act results in death or is committed in conjunction with another crime. ( 60(c) A20 FLOERSHEIMER CENTER OCCASIONAL PAPERS

21 Act No of 10 November 1999: Criminalizes acts of torture ascribed to military personnel (including gendarmes). ( 16) A state of war cannot be invoked in France in order to justify torture. ( 18) GEORGIA Criminal Code: Georgia s definition of torture is generally compatible with the definition given in the Convention against Torture. ( 25) Amended Decree No of 28 July 1975, Art. 9: Military personnel are prohibited from violating the life, person or personal dignity of the sick, the wounded or the shipwrecked or of prisoners or civilians, in particular through murder, mutilation, cruel treatment or any form of torture. ( 18) On Normative Acts Law: Provides that international agreements and treaties are normative acts of Georgia and Art. 1 of the CAT is a part of Georgian legislation. ( 25) Criminal Procedure Code, Art. 12: In the conduct of investigative or court activities the use of threat, blackmailing, torture, and other forms of physical or psychological coercion is prohibited. ( 26) Torture is a punishable offence under Georgian legislation. ( 40) None listed. FLOERSHEIMER CENTER OCCASIONAL PAPERS A21

22 COUNTRY DEFINITION LEGISLATION SANCTIONS AVAILABLE GERMANY Germany does not define torture. In the German view, criminal law must be based on offences whose elements are as precise and clearly identifiable as possible. This is why the Federal Republic of Germany has refrained from including provisions in general domestic criminal law which make a very general reference to torture and other cruel, inhuman or degrading treatment or punishment which would depend on the concrete fulfilment of these undefined legal concepts. ( 51) It is true that there is no separate offence of torture under German criminal law. However, this is not necessary, since all the ways of acting which are punishable under article 4 [of the CAT] are covered by penal provisions that already exist. In addition, all conceivable cases of torture or other cruel, inhuman or degrading treatment or punishment are covered by a number of concrete penal provisions. ( 17, 4) Basic Law, Art. 1, 1-2: The Federal Republic of Germany has placed the inviolability of human dignity and its commitment to human rights as supreme values at the peak of its Constitution. Thus torture is outlawed under the Constitution as one of the most serious offences against human dignity conceivable. ( 3) Basic Law, Art. 2, 2: Every person has the right to life and physical integrity. This constitutional right applies not only to interference with physical integrity by the State, but also, according to the established case law of the Federal Constitutional Court, to interference by means of mental torture, emotional None listed. A22 FLOERSHEIMER CENTER OCCASIONAL PAPERS

23 GREECE Penal Code, Art. 137 A(2): Torture is (a) any systematic infliction of acute physical pain; (b) any systematic infliction of physical exhaustion endangering the health of a person; (c) any systematic infliction of mental suffering, which could lead to severe physical damage; (d) any illegal use of chemical, drugs or other natural or artificial means aiming at bending the victim s will. ( 230) cruelty and other such interrogation methods. ( 3) Act to Introduce the Code of Crimes Against International Criminal Law: Torture is criminalized as a crime against humanity. ( 4, 17) Act to Introduce the Code of Crimes Against International Criminal Law: Provides that cruel or inhuman treatment by causing substantial physical or mental harm or suffering, especially in the form of torture or mutilation, subject to punishment is a war crime. ( 17) Penal Code, Art. 137 A(1): Any public servant or military officer whose duties include the prosecution, the investigation or the examination of criminal or disciplinary offences or the execution of penalties or the guarding or the custody of detainees, shall be punishable by imprisonment, if he or she subjects to torture, in the course of the performance of his or her duties, any person under his or her authority, with a view: To extorting from him or her or a third person a confession, deposition, piece of informa- Penal Code, Art. 137 D(4): [T]he victim of any act described in articles 137A and 137B has the right to claim from the perpetrator of the act and the State, which are liable in full, compensation for the damages he or she suffered, as well as monetary satisfaction for moral damages and for pain or suffering sustained. ( 235) FLOERSHEIMER CENTER OCCASIONAL PAPERS A23

24 COUNTRY DEFINITION LEGISLATION SANCTIONS AVAILABLE GUATEMALA Penal Code, Art. 201: The offence of torture is committed by anyone who, on orders from or with the authorization, support or acquiescence of the State authorities, intentionally inflicts pain or suffering, whether physical or mental, on another person for the purpose of obtaining from that person or a third person information or a confession concerning an act he has committed or by anyone who attempts to intimidate another person or, by so doing, other persons. The offence of torture is also committed by the members of groups or organized gangs having terrorist, insurgent or subversive aims or any other wrongful purpose. The consequences of action taken by a competent authority in the legitimate exercise of its duty and in order to safeguard public order shall not be considered as torture. ( 9) tion or statement, especially that of repudiation or acceptance of a political or other ideology; To punishing him or her; To intimidating him or her or a third person. ( 231) Penal Code, Art. 201: Criminalizes torture. ( 9) Penal Code, Art. 245: Any public official or employee who orders the use of undue duress, torture, degrading punishment, humiliation or any measures not authorized by law against a prisoner or detainee shall be sentenced to from two to five years imprisonment and general disqualification from office. The same sentence shall apply to those who carry out such orders. ( 10) Penal Code, Arts. 201 and 245: Provides jail terms of up to 30 years for people who are involved in inflicting torture. ( 9,10) A24 FLOERSHEIMER CENTER OCCASIONAL PAPERS

25 HUNGARY Hungary uses the CAT definition of torture. (3rd Report, 21) As the Convention has been fully integrated into the Hungarian legal system, the provisions of the Convention have the legal status of a sui generis law and consequently are directly enforceable. (3rd Report, 2) Constitution, Art. 54, 1 & 2: No one shall be subject to torture or to cruel, inhuman or degrading treatment or punishment. (3rd Report, 8, 23) Act No. XXXII of 1993, Art. 2l, 1 & Act on the Police, Art. 16, 1-3: Convicts may not be subjected to torture or to other cruel, inhuman or degrading treatment. (3rd Report, 26) Act on the Police, Art. 16, 3: Provides that the policeman shall not carry out torture, cruel, inhuman or degrading treatment and he is obliged to refuse to obey such an order of a superior officer. Furthermore, he is obliged to initiate a legal procedure aimed at eliminating this act as well as to have the case investigated. (3rd Report, 30) Criminal Code, Art. 228: Provides a maximum of eight years' imprisonment for torture. (3rd Report, 28) Penal Code, Sec. 83(2): Stipulates that the courts in sentencing should apply in general the median length of legal limits of imprisonment in most cases - divergence is allowed only on special grounds, including infringement of the Convention against Torture. ( 37) FLOERSHEIMER CENTER OCCASIONAL PAPERS A25

26 COUNTRY DEFINITION LEGISLATION SANCTIONS AVAILABLE ICELAND The term torture is not defined in the Constitution, nor is it specifically defined or mentioned in the General Penal Code. ( 50) There is a greater danger of being subjected to torture or inhuman treatment in cases where the individual is held against his will. However, it was not the case that torture and inhuman and degrading treatment were always associated with the loss of freedom, as circumstances could apply in which an individual was subject to the authority of another or was under the domination of another individual. Examples of this could include the treatment of children in a school or other institution where children are looked after, but the provision could also cover the treatment of children by their parents. ( 53) Act No. 97/1995: Differentiates between torture and degrading treatment. ( 54-56) There can be no doubt that the term torture would be interpreted in accordance with article 1 of the Convention if it were to be contested before the courts. Nevertheless, Icelandic Constitution (Act No. 33/1944), Art. 68: No person may be subjected to torture or other inhuman or degrading treatment or punishment. ( 50) None listed. A26 FLOERSHEIMER CENTER OCCASIONAL PAPERS

27 INDONESIA the Icelandic Constitution is somewhat broader than the CAT as it is not restricted to the view that torture is something practiced at the behest of a public servant or another representative of State power, but appl[ies] to all situations. ( 58) Indonesia uses the CAT definition of torture. ( 66) Law No. 39 of 1999 on Human Rights, Art. 1(4): Torture is any activity which is undertaken intentionally so as to cause someone severe pain or suffering, whether physical or mental, in order to obtain a confession or information from that person or a third person, 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. ( 66) Art. 25 of MPR Decree No. XVII of 1998 on Human Rights Indonesia s Charter on Human Rights: Every person has the right to be free from torture or treatment that insults human values. ( 19) Law No. 39 of 1999, Art. 4 on Human Rights: Provides for the right not to be tortured. ( 20) 1945 Constitution, 2nd Amend., Chapter X on Human Rights, Art. 28G(2): Guarantees right to be free from torture or inhuman or degrading treatment and the right to seek asylum in another country. ( 50) 1945 Constitution, 2nd Amend., Chapter X on Human Rights, Art. 28I: The right to life, the right not to be tortured, the right of freedom of thought and conscience are non-derogable human rights. ( 50) Government Regulation in lieu of Law No. 1 of 1999 on Human Rights Courts, Art. 8: An official guilty of torture under Art. 4(f) receives capital punishment, life imprisonment, imprisonment for 15 years, or at least 3 years. ( 67) Penal Code, Art. 53: An attempt to commit torture is punished if the act was begun and only remained incomplete due to intervening causes; the penalty is one third of the punishment for the crime; if a capital offense is attempted, the punishment is up to fifteen years imprisonment. ( 80) FLOERSHEIMER CENTER OCCASIONAL PAPERS A27

28 COUNTRY DEFINITION LEGISLATION SANCTIONS AVAILABLE Law No. 1 of 1999 on Human Rights Courts, Art. 4 (f): Torture is an act by a competent authority causing severe pain or suffering, whether physical or mental, in order to obtain a confession or information from someone or a third person, or in order to threaten or coerce that person or a third person, or for any discriminatory reason on any grounds. Penal Code, Art. 55: Provoking torture is punishable. ( 81) Law No. 31 of 1997 on the Military Court: Torture committed by the Indonesian Army is investigated by military police, prosecutors, and judges. ( 56) Government Regulation No. 30 of 1980 on Discipline of Public Servants: Public servants may not perform any activities that might be considered as or related to torture. ( 71) ISRAEL None listed. Basic Law: Human Liberty and Dignity: [A] general prohibition of cruel, inhuman or degrading treatment or punishment, including torture; it applies equally to public and private actors. ( 5) To file a complaint against the police, a victim of torture submits the complaint to the disciplinary department of the Personnel Division at Central Headquarters or to a branch office. ( 71) A victim of torture or his representative may file complaints with the Department for Investigation of Police Personnel of the Ministry of Justice ( DIPP ). Or, the DIPP can initiate its own proceedings against a police officer. ( 74) The IDF investigates each claim of mistreatment of detainees by members of the IDF; punishments include a court-martial and disciplinary proceedings. ( 86) A28 FLOERSHEIMER CENTER OCCASIONAL PAPERS

29 JORDAN None listed. Jordan has not promulgated laws that criminalize torture. However, the Constitution, which is the source of authority that protects freedoms, makes provision for numerous means to deal with this question. The Penal Code punishes the infliction of unlawful violence or harsh treatment with a view to obtaining an offence or information yet does not refer to this act as torture. ( 47, 48) Torture victims can commence a tort action against the perpetrator and the State; these claims are subject to sovereign immunity unless the State ratified the conduct. ( 87) Penal Law, 77, : Victims may receive damages from criminal proceedings, which is limited to a fixed amount, NIS 60,000 (about US $17,000). ( 88) A torture victim may complain in civil court, but will not be regarded as a civil party unless he requests to be. ( 122) A torture victim need not pay legal fees or costs; the victim may commence a civil action and may pursue his claim after judgment. ( 123) There is no criminal law entitling a torture victim to compensation, but compensation can be claimed and awarded at the court s discretion. ( 125) FLOERSHEIMER CENTER OCCASIONAL PAPERS A29

30 COUNTRY DEFINITION LEGISLATION SANCTIONS AVAILABLE KAZAKHSTAN Commentary on the Criminal Code, Art. 347: Torture is regarded as constituting acts that cause physical or mental suffering such as beating, twisting of the wrists, the use of painful methods, inflicting burns on the body, the prolonged and systematic infliction of pain, etc. ( 13) Commentary on the Criminal Code, Art. 107: Systematic or brutal violence involving torture covers cases when, in order to cause physical or mental suffering, particularly sophisticated methods are employed to affect the human body. These include the use of electric shocks, red hot irons, fire, etc. ( 13) Criminal Code, Art. 107: Private individuals who are not public officials using torture in order to commit an unlawful act are held criminally responsible for their acts. ( 14) Art. 4, 3, of the Constitution: International treaties ratified by the Republic shall have priority over its laws and be directly implemented except in cases when the application of an international treaty requires the promulgation of a law. On the basis of these provisions, the definition of the term torture given in the Constitution can be officially used for purposes of law enforcement. ( 13) Criminal Code: Contains no provisions that specifically establish responsibility for torture. However, it does provide for punishment, including substantial imprisoned terms, for various types of offenses that fall under the torture definition of Commentary on the Criminal Code and the Convention. ( 41) Citizens may appeal to the Human Rights Commission of the Office of the President, the Office of the Procurator General, and the Committee on the Execution of Criminal Penalties of the Ministry of Internal Affairs, if they have been subjected to torture or other cruel, inhuman or degrading treatment or punishment. ( 21) None listed. A30 FLOERSHEIMER CENTER OCCASIONAL PAPERS

31 LATVIA Latvia uses the CAT definition of torture. ( 7) 1993 Supreme Court Decision On Application of Criminal Laws in Cases of Infliction of Intentional Bodily Injuries : Torment must be understood to mean actions that, committed by the guilty person, being aware of it, cause particularly strong pain to another person, physical or moral suffering (for example, leaving a person without food, drink, warmth for extended periods of time as well as placing or leaving a person in other conditions that are hazardous for health), while torture must be understood to mean actions that, committed by the guilty person, being fully aware of it, are characterized by multiple or prolonged acts, causing particular pain or suffering to victims (for example, whipping with rods, pinching, influence by thermal factors, pricking with sharp objects, etc). ( 6) Constitution, Art. 89: Forbids torture. ( 3) Criminal Law, Art. 74: Criminalizes war crimes that have been manifested by the murder, torture, robbery, deportation or assignment to coercive labour of civilians, hostages and prisoners of war of the occupied territory. ( 11) Criminal Law, Art. 125: Criminalizes infliction of an intentional serious bodily injury with the character of torment or torture. ( 12) Criminal Law, Art. 126: Criminalizes infliction of intentional moderate bodily injury with the characters of torment or torture. ( 12) Criminal Law, Art. 130: Prohibits Intentional Slight Bodily Injury. criminalizing regular beating that has the nature of torture or any other kind of torture, provided these actions have not had the consequences set out in articles 125 and 126. ( 12) Criminal Law, Art. 74: Life imprisonment or deprivation of liberty for 3 to 20 years. ( 11) Criminal Law, Art. 125: Imprisonment for 3-12 years. ( 12) Criminal Law, Art. 126: Imprisonment for up to 8 years. ( 12) Criminal Law, Art. 130: Imprisonment for up to 3 years, or custodial arrest, community service, or a fine of up to 60 monthly salaries. ( 12) Criminal Law, Art. 338: Imprisonment for up to 8 years. ( 13) FLOERSHEIMER CENTER OCCASIONAL PAPERS A31

32 COUNTRY DEFINITION LEGISLATION SANCTIONS AVAILABLE Criminal Law, Art. 338: Prohibits Criminal Offenses Committed during Military Service prescribing liability for the infliction of intentional moderate bodily injury to a subordinate as well as of other acts which have the nature of torture. ( 13) LITHUANIA None listed. Constitution, Chapter II, Art. 21: The person shall be inviolable. Human dignity shall be protected by law. It shall be prohibited to torture, injure, degrade, or maltreat a person, as well as to establish such punishments. No person may be subjected to scientific or medical testing without his or her knowledge thereof and consent thereto. ( 3) Criminal Code, Art. 111: Criminalizes intentional serious bodily harm, infecting with a disease of causing any other ailment. Heightened penalty if committed by cruel torturing. ( 46) Criminal Code, Art. 112: Criminalizes intentional minor bodily harm, infecting with a disease or causing any other ailment. Heightened penalty is committed by cruel torturing. ( 47) Constitution, Art. 30: Guarantees anyone whose constitutional rights/freedoms have been violated the right to sue. ( 4) Criminal Code, Art. 111: Imprisonment for term from 5 to 10 years. ( 46) Criminal Code, Art. 112: Imprisonment for term of up to 5 years. ( 47) Criminal Code, Art. 117: Imprisonment for a term of up to 6 months or a fine; if a minor, up to one year or a fine. ( 48) A32 FLOERSHEIMER CENTER OCCASIONAL PAPERS