or suffering or because it was not inflicted for a purpose. The essential elements which constitute ill-treatment not amounting to torture are therefore:
• Intentional exposure to significant mental or physical pain or suffering;
• By or with the consent or acquiescence of the State authorities.
While some commentators suggest that the victims of acts referred to in Article
16 are only those persons who have actually been deprived of their freedom by
the authorities219, this limited approach does not appear to be based on the text
of Article 16.
In general, it is not possible to make a distinction between measures aimed
at the prevention of torture and those aimed at the prevention of cruel,
inhuman, or degrading treatment or punishment. Measures taken by States will
be aimed at preventing both evils, because torture is in any case a form of cruel,
inhuman, or degrading treatment or punishment. This is shown by the word
“other” in Article 16 §1.
II. INDIVIDUAL ANALYSIS OF ARTICLES 1–16 OF THE CONVENTION
2. ANALYSIS OF SUBSTANTIVE PROVISIONS
The article specifically provides that “in particular” the obligations in Article 10
(dissemination of information and training), Article 11 (continuous review of
interrogation and detention rules and practices), Article 12 (prompt and impartial ex officio investigation), and Article 13 (victims’ right to complaint and
recourse) apply also to cruel, inhuman, and degrading treatment and punishment, and not only torture as defined in Article 1. The words “in particular” do
not exclude the obligations flowing from other articles also applicable to acts
under Article 16, such as Article 15 and possibly Article 14.
58
However, the distinction in the Convention between the different categories of
ill-treatment is critical in one important respect: States Parties are obliged to
establish their jurisdiction over acts of torture and either prosecute or extradite
those suspected of committing such acts (see Articles 4, 5, and 7). This obligation does not apply to those who have committed acts as defined in Article 16.
§ 2. Any wider protection mechanism relating to cruel, inhuman, or
degrading treatment or punishment in national or international law is not
affected by the provisions of the Convention. A similar clarification is included
with regard to international or national law relating to extradition or expulsion.
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