E/CN.4/1997/7
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the relationship of the practice to the mandate of the Special Rapporteur.
Accordingly, the following paragraphs aim to address the matter.
5.
The Special Rapporteur throughout his tenure has received substantial
information on the practice of corporal punishment in a number of countries.
The information pertains to a variety of methods of punishment, including
flagellation, stoning, amputation of ears, fingers, toes or limbs, and
branding or tattooing. With respect to the practice in some countries, the
authority for the imposition and execution of the punishment derives from
legislation or executive decree having the force of legislation. The legal
provisions in question envisage the infliction of corporal punishment as an
ordinary criminal sanction, either alternative to or in combination with other
sanctions such as fine or imprisonment. In some countries the provisions are
to be found in administrative regulation, such as that contained in prison
manuals in respect of disciplinary offences. In other instances, informal or
quasi-official agencies, such as ad hoc village tribunals or religious courts,
have pronounced sentences of corporal punishment which appear to be extrinsic
to the State's constitutional criminal justice system. In respect of these
latter cases, the State must be considered responsible for the consequences of
these sentences, if they are carried out with its authorization, consent or
acquiescence.
6.
The Special Rapporteur takes the view that corporal punishment is
inconsistent with the prohibition of torture and other cruel, inhuman or
degrading treatment or punishment enshrined,
inter alia , in the Universal
Declaration of Human Rights, the International Covenant on Civil and Political
Rights, the Declaration on the Protection of All Persons from Being Subjected
to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and
the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment. Accordingly, the Special Rapporteur has made a number of
urgent appeals on behalf of persons who had been sentenced to corporal
punishment, requesting that the concerned Government not carry out the
sentence. He has also brought to the attention of a number of Governments
information he received on the general practice of corporal punishment in
their respective countries, as well as individual cases in respect of which
such punishment had been carried out.
7.
The Special Rapporteur is aware of the view held by a small number of
Governments and legal experts that corporal punishment should not be
considered to constitute torture or cruel, inhuman or degrading treatment or
punishment, within the meaning of the obligation of States under international
law to refrain from such conduct. Some proponents of the proposition that
corporal punishment is not necessarily a form of torture argue that support
for their position may be found in article 1 of the Convention against
Torture, wherein torture is defined for the purposes of the Convention. That
definition excludes from the ambit of proscribed acts those resulting in “pain
or suffering arising only from, inherent in or incidental to lawful
sanctions”. Thus, the argument proceeds, if corporal punishment is duly
prescribed under its national law, a State carrying out such punishment cannot
be considered to be in breach of its international obligations to desist from
torture.