ODIHR Opinion on Definition of Torture and its Absolute Prohibition in Polish Legislation and to adopt a definition of torture that covers all the elements contained in article 1 of the Convention.” 10 24. The CAT further noted that the State should “ensure that penalties for torture are commensurate with the gravity of the crime” in accordance with Article 4, paragraph 2, of the UNCAT…. and “to take all necessary measures to ensure that the right of detainees to complain can be fully exercised, including for complaints of torture and illtreatment.”11 2.1 Legal Interpretation 25. There have been number of legal precedents in Poland where the courts have recognized acts of torture. In a recent case, on 30 January 2018, the District Court in Lublin ruled, by referencing the UNCAT, that an applied punishment in a detention place meets the definition of torture. The court imposed, among others, a three-year imprisonment for the responsible officer, as well as one year for each accomplice.12 3. Primary Elements of Definition of Torture 26. As already noted, international obligations deriving from the absolute prohibition of torture and other ill-treatment impose a number of obligations on States. Article 2 of the UNCAT obliges each State to “take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.” 13 The central issues for consideration by Polish authorities relate to the obligation to ensure that acts of torture are serious criminal offences within its legal system and torture is defined in the legislation in line with Article 1 of the UNCAT. 27. While States do not need to adopt exactly the same definition as the one provided in the UNCAT, “serious discrepancies between the definition and that incorporated into domestic law may create actual or potential loopholes for impunity… thus the Committee calls upon each State party to ensure that all parts of its Government adhere to the definition set forth in the Convention for the purpose of defining the obligations of the State.” 14 10 11 12 13 14 See the CAT’s Concluding observations on the combined fifth and sixth periodic reports of Poland and its recommendations, 23 December 2013. In addition, in 2016, the CAT, with reference to the Committee’s previous concluding observations, asked the Polish government to provide detailed information on the measures taken to adopt a definition of torture in domestic penal law consistent with Article 1 of the Convention. In response, in the 7th Periodic Review Report, published on 20 February 2018, authorities noted that “[i]nspite of the fact that the Polish Penal Code does not contain a separate torture crime, all elements specified in the definition of torture in CAT are penalised in Poland – they meet the statutory definition of various crimes contained in Kk. Notwithstanding this, the Ministry of Justice started analytical works aiming at evaluation of the justified character of introducing the definition of torture to the Polish Penal Code.” See the press release of the Office of the Commissioner for Human Rights of the Republic of Poland from 1 January 2018. As decision of the court is not available at the time of this reporting, ODIHR is not able to assess the reasoning of the decision. In addition, see also a Judgment of the District Court in Wroclaw from 21 March 2014, and a Judgment of the Court of Appeals from 30 September 2014, both quoting Article 3 of the ECHR. See also paragraph 20 of the 1994 OSCE Budapest Document, which provides that the participating States “recognize the importance of national legislation aimed at eradicating torture. They commit themselves to inquire into all alleged cases of torture and to prosecute offenders.” See paragraph 9 of the General Comment No.2 on Implementation of Article 2. 8