ODIHR Opinion on Definition of Torture and its Absolute Prohibition in Polish Legislation for discrimination.20 In this respect Article 246 of the Polish Penal Code has a restrictive interpretation, as prohibits an act only when committed with a purpose of “obtaining specific testimony, explanations, information or a statement.” This scope is insufficient as it does not protect all individuals who could be subject to torture and other illtreatment. Moreover, Article 247 states that only persons deprived of liberty are protected, while torture and other ill-treatment can be committed in other settings. 3.2 Involvement of a Public Official 33. As also noted above, a State is responsible when an act of torture or omission 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.” As a positive obligation, Article 16 of the UNCAT requires States to prevent “other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture […], when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” In a number of rulings the ECtHR has noted that the State has an obligation to protect individuals from the act of torture when inflicted by a person other than a public official.21 34. The CAT noted that “where State authorities or others acting in official capacity… know or have reasonable grounds to believe that acts of torture or ill-treatment are being committed by non-State officials or private actors and they fail to exercise due diligence to prevent, investigate, prosecute and punish such non-State officials or private actors consistently with the Convention, the State bears responsibility and its officials should be considered as authors, complicit or otherwise responsible under the Convention for consenting to or acquiescing in such impermissible acts.”22 35. The UN Special Rapporteur further highlighted that “individual responsibility for complicity in torture arises also in situations in which State agents do not themselves directly inflict torture or other ill-treatment but direct or allow others to do so, or acquiesce in it. In addition, orders from superiors or other public authorities cannot be invoked as a justification or excuse.”23 36. It is welcomed that, in general, Article 246 of the Penal Code imposes sanctions for “a public official or anyone acting under his orders,” and that Article 247 further extends the sanctions for any perpetrator who “acts with particular cruelty” and a “public 20 21 22 23 In its most recent concluding observation report for Italy (18 December 2017), the CAT welcomed the introduction of the crime of torture as a specific offence, however noted that “the definition set forth in the new article 613 bis of the Criminal Code is incomplete inasmuch as it fails to mention the purpose of the act in question, contrary to what is prescribed in the Convention. Moreover, the basic offence does not include specifications relating to the perpetrator — namely, reference to the act being committed by, at the instigation of, or with the consent or acquiescence of a public official or other person acting in an official capacity.” For example, in the case of H.L.R. v. France (No. 24573/94; 29 April 1997), the court ruled that “[by] virtue of the positive obligations incumbent on the States and the absolute character of the right concerned, Article 3 applied to inhuman and degrading treatment resulting from the actions of private individuals where a Contracting State had, through its acts or passivity, failed to comply with its duties under the Convention.” Paragraph 18 of General Comment No. 2 on Implementation of Article 2 by States parties (CAT/C/GC/2), 24 January 2008. See paragraph 23 the Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez, 7 August 2015. 10