Article 2. Obligation to Prevent Torture
81
authorities should do everything they could to demonstrate their intention to improve
the situation.’51 The Committee therefore has allowed some degree of flexibility concerning the time frame of implementation. There may be circumstances in which a State
is allowed, temporarily, some latitude in its compliance, while at the same time the State
has an obligation to continually improve its national laws as well as the practical application of these laws in line with the Convention and the Committee’s concluding observations and views adopted on individual communications.52 An act of torture, however,
can never be justified. The Committee has made clear that ‘torture should be prohibited
whatever the stage of development of a country and whatever the nature of the offence
being investigated’.53
25 Boulesbaa rejects the idea of progressive implementation but at the same time asserts
that the obligation of States to prevent torture is not absolute: ‘The obligation is rather to
take steps to achieve reasonable results in the prevention of torture’.54 This contradiction
is based on a simple misunderstanding of the obligations of States to respect and ensure
human rights. Of course, the obligation of States to refrain from practicing torture (obligation to respect), which is also implicit in Article 2(1) as we have seen above, is absolute and,
therefore, not subject to progressive implementation. Every individual case of torture, as
defined in Article 1, constitutes a violation of this absolute and non-derogable right. But
positive obligations of States, be they obligations of conduct or result, aimed at fulfilling
a certain human right by means of legislative, administrative, judicial, political, and other
measures are always relative and, therefore, subject to the principle of progressive implementation. Taking into account the indivisibility and interdependence of all human rights,
this principle can no longer be applied exclusively to economic, social, and cultural rights,
but must be applied to civil and political rights as well.55 Just to give an example: if there
exists a reasonable training programme on how to prevent torture for prison and police
officials, States parties are still under an obligation under Article 10 CAT to improve this
training programme further in accordance with ‘good practices’ by means of ‘progressive
implementation’ and to report on these ‘new measures taken’ to the Committee in accordance with Article 19(1). But the total absence of any anti-torture training would clearly
violate the State obligation under Article 10 as well as its general obligation to take effective administrative measures to prevent acts of torture under Article 2(1).
26 While the Committee has recognized that States parties may choose the measures
through which they implement their obligations, it has equally emphasized that a States
party must take measures that are effective and consistent with the object and purpose of
the Convention.56 In the reporting procedure, the Committee interprets this provision
in the broadest sense and requests States parties to take a variety of measures aimed at
preventing torture.
3.1.2 Legislative, Administrative, Judicial, or Other Measures
27 Article 2 stipulates that each State Party shall take ‘effective legislative, administrative, judicial or other measures to prevent acts of torture’. The formulation that
52
53
CAT/C/SR.111, para 18.
CAT/C/GC/2 (n 1) para 4.
A/47/44, para 65.
55
Boulesbaa (n 26) 71 and 53.
See Nowak, ‘Introduction’ (n 30).
56
CAT/C/GC/2 (n 1) para 6. CAT/C/SR.12, para 22; CAT/C/SR.14, para 34; CAT/C/SR.32, paras 24
and 34; CAT/C/SR.36, para 32; CAT/C/SR.61, para 57; CAT/C/SR.77, para 22; CAT/C/SR.91, paras 36 and
43; CAT/C/SR.122, para 68; CAT/C/SR.143/Add.2, para 39; CAT/C/SR.162, para 77; CAT/C/SR.193, para
44; CAT/C/SR.203, para 51; CAT/C/SR.232, para 38; CAT/C/SR.238, para 35.
51
54
Zach
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