ODIHR Opinion on Definition of Torture and its Absolute Prohibition in Polish Legislation 28. Article 4 of the UNCAT requires each State to ensure that all acts of torture and offences are under its criminal law. The definition itself should encompass the following: the intentional infliction of severe pain or suffering, whether physical or mental; a specific purpose; and when (both directly and indirectly) 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. 29. In addition, international torture prevention mechanisms stress the importance of a gender-sensitive interpretation of torture and the need to pay particular attention to issues such as rape in detention, violence against pregnant women and denial of reproductive rights, which have long been recognised as falling under the Convention’s definition.15 3.1 Nature, Intent and Purpose of the Act of Torture 30. An act constitutes torture when it is intentional, causes severe physical or mental suffering, and is committed with a specific purpose. According to the UN Interpretation of Torture, torture is “the legal qualification of an event or behaviour, based on the comprehensive assessment of this event or behaviour...Because of the specific intensity or nature of certain acts, the qualification of torture may be easily granted in certain cases. However, in some others, the vulnerability of the victim (age, gender, status, etc.), as well as the environment and the cumulative effect of various factors, should be taken into account to determine whether this case amounts to torture or whether it does not reach this ultimate threshold and should be considered as cruel, inhuman or degrading treatment or punishment.”16 This relates both to physical, as well as to mental pain and emotional anguish. 31. While torture always requires the intentional and purposeful infliction of pain or suffering on a powerless person, other ill-treatment can comprise the infliction of pain or suffering without deliberate intention.17 The CAT further clarified that the element of intent and purpose does not involve a subjective inquiry into the motivations of the perpetrators but rather must result from objective determinations under the circumstances. 18 The ECtHR also ruled that as opposed to other ill-treatment, torture involves “deliberate inhuman treatment causing very serious and cruel suffering.”19 32. Consequently, due consideration should be given to the purposive element in the definition. At a minimum, this should include, among others, a purpose for extracting a confession, for obtaining information, for punishment, for intimidation and coercion or 15 16 17 18 19 See also the Report of the UN Special Rapporteur A/HRC/31/57. See the Report of the UN Voluntary Fund for Victims of Torture on the Interpretation of Torture in the Light of the Practice and Jurisprudence of International Bodies (2011). See paragraph 32 of the Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment (A/72/178), 20 July 2017. Paragraph 9 of General Comment No. 2 on the Implementation of Article 2 by States parties (CAT/C/GC/2), 24 January 2008. The United Nations Special Rapporteur on Torture has also opined that distinguishing factor between torture and other ill- treatment “is not the intensity of the suffering inflicted, but rather the purpose of the conduct, the intention of the perpetrator and the powerlessness of the victim…. Cruel, inhuman or degrading treatment or punishment…means the infliction of pain or suffering without purpose or intention and outside a situation where a person is under the de facto control of another.” - Report of the UN Special Rapporteur on the Question of Torture (A/HRC/13/39). See Selmouni v. France, Judgment of 28 July 1999. 9