ODIHR Opinion on Definition of Torture and its Absolute Prohibition in Polish Legislation such practices. 7 In addition, in the 17th OSCE Ministerial Council in Athens (1 December 2009) the participating States recognized that “torture is a most serious crime […] and pledge to uphold the absolute prohibition of torture and other ill-treatment as set forth in the CAT, to implement fully and in good faith its provisions, and to act in full conformity with all its principles.” 2. Existing Anti-torture Legislation in Poland 20. Poland is party to a number of regional and international agreements and treaties prohibiting torture and other ill-treatment. Furthermore, the right to be free from torture and other ill-treatment is guaranteed by Article 40 of the 1997 Constitution of the Republic of Poland, which provides that “[n]o one may be subjected to torture or cruel, inhuman, or degrading treatment or punishment.” 8 The prohibition of torture is mentioned in the Penal Code of Poland, but within a limited scope. For example, under the offences against peace, humanity and war crimes it provides that whoever “uses torture or subjects a person to cruel or inhumane treatment” (Article 118a), and whoever “in violation of international law, commits the homicide….subjects such persons to torture, cruel or inhumane treatment” (Article 123.2), should be deprived of liberty from 5 to 25 years. 21. Furthermore, Article 246 of the Penal Code prohibits an act committed by “a public official or anyone acting under his orders for the purpose of obtaining specific testimony, explanations, information or a statement, uses force, unlawful threat, or otherwise torments another person either physically or psychologically.” 9 Article 247 expands on protecting the rights of detainees by providing that “[w]hoever torments either physically or psychologically a person deprived of liberty shall be subject to the penalty of deprivation of liberty for a term of between 3 months to 5 years.” The penalty is graver for those who act “with particular cruelty,” amounting to the deprivation of liberty from 1 and 10 years. This penalty also extends to acts not directly committed by a public official, but also to those who permit such acts to happen. 22. The Penal Code does not include torture and other ill-treatment as a separate offence. However, torture and ill-treatment is listed in the context of other crimes, that is, other articles of the Penal Code, mentioned above. However, those are not broad enough to encompass all elements of acts of torture and other ill-treatment as explicitly defined by Article 1 of the UNCAT and thus, would not cover all of the potential contexts and crimes within which torture and ill-treatment could take place. Furthermore, the punishment suggested for acts of torture in those provisions does not reflect the gravity of the crime. 23. In its 2013 concluding observation on Poland, the CAT recommended to “take effective legislative measures to include torture as a separate and specific crime in its legislation 7 8 9 See all OSCE commitments on torture prevention. This includes, paragraph 23.4 of the 1989 Vienna Document, paragraph 20 of the 1994 Budapest Document, paragraph 16 of the 1990 Copenhagen Document, paragraph 21 of the 1999 Istanbul Document. See the 1997 Constitution of the Republic of Poland (Dz.U. 1997, poz. 483). See the 2016 Penal Code of the Republic of Poland (Dz.U. 2016 poz. 1137). 7