A/HRC/19/61/Add.2 13. Although article 22 of the new Constitution reflects article 7 of the International Covenant on Civil and Political Rights on the prohibition of torture, under the Criminal Code torture belongs to the crimes of minor gravity involving lesser public danger; a charge of torture may be dropped if victims decide to withdraw their complaint or in the event of reconciliation. 3 The insignificant sanction provided for under article 305-1 inevitably creates an environment conducive to impunity as perpetrators usually get conditional sentencing as first-time offenders or are released on amnesty. In Kyrgyzstan, the crime of torture is not differentiated from other types of abuse of power, making it hard to distinguish torture from lesser forms of cruel, inhuman, or degrading treatment or punishment. The crime of torture can usually be prosecuted under other provisions of the Criminal Code, including “abuse of power” (art. 304), “exceeding power” (art. 305), “negligence” (art. 316) or “forced deposition” (art. 325). 14. The current definition of torture in article 305-1 is incomplete and not fully in conformity with article 1 of the Convention against Torture. It limits criminal responsibility to “public officials” and does not criminalize torture committed by others acting in an official capacity or by individuals acting at the instigation or with the consent or acquiescence of public officials. Furthermore, it does not refer to severe pain, and discrimination is not mentioned as a reason for committing torture. In addition, the specific offence of torture is not punishable by appropriate penalties commensurate with the gravity of the offence, as required by article 4, paragraph 2, of the Convention. The Special Rapporteur was encouraged to learn that a Ministry of Justice working group has drafted a law on amendments to the Criminal Code, to be submitted to Parliament, and that the bill will eventually correct the anomaly with regard to the penalty for torture. 2. Safeguards during arrest and detention 15. Article 24, parts 3 and 4, of the Constitution and article 39, part 2, of the Criminal Procedure Code provide that no one may be detained in custody for more than 48 hours without a judicial decision. The provision also details that detainees should be brought promptly or in any case before the expiration of the 48-hour period following the moment of apprehension before a court in order for it to decide on the lawfulness of detention. 16. While article 24, part 5, of the Constitution prescribes the right to legal counsel for any person in detention from the moment of the actual apprehension, the Code of Criminal Procedure delays this guarantee to the moment of the first interrogation or the moment of actual delivery to the institution in charge of conducting preliminary investigation (art. 40, part 4). 17. Articles 44 and 45 of the Code of Criminal Procedure provide that, in the event the defence lawyer of choosing is not able to appear within 24 hours from the moment of arrest or custodial placement, the investigator is entitled to arrange for the designation of a Stateappointed defence lawyer. 18. According to article 100 of the Code of Criminal Procedure, suspects should be interrogated in the presence of a defence lawyer. Prior to the interrogation, the arrested person is to be informed of his or her rights and of the offence suspected, in accordance with article 24, part 5, of the new Constitution. 19. According to the amendment to article 17 of the Law on Procedure and Conditions of the Detention of Persons Suspected or Accused of a Crime in Custody, an additional 3 6 According to the Prosecutor General’s Office, decisions about the discontinuation of criminal cases of lesser gravity are adopted mainly on the basis of articles 28.1.12 and 28.1.14 (refusal to support accusation), article 29.1.2 (peaceful settlement) of the Code of Criminal Procedure and article 66.2 (agreement reached with the victim) of the Criminal Code.