A/HRC/13/39/Add.2 C. National level 1. Constitutional and legislative provisions criminalizing torture 15. Section II of the Constitution of 1997, entitled “Rights, Duties and Guarantees”, lists a number of important fundamental rights, the abolition of the death penalty, as well as several judicial rights and guarantees.2 16. There is no explicit reference to the prohibition of torture in the Constitution of Uruguay, although in general terms it states that all citizens have the right to be protected in the enjoyment of their life, honour, liberty, security, work and property. 17. Article 286 of the Uruguayan Penal Code, concerning “Abuse of authority against detainees”, stipulates that a public official responsible for prison administration, or for custody or transfer of an arrested or convicted person who commits arbitrary acts on this person or who subjects such person to rigorous treatment not permitted by the regulations, shall be punished with six months to two years of imprisonment. Accordingly, article 320 bis specifies that causing bodily harm by such a public official against an arrested or convicted person constitutes an aggravating circumstance, for which the respective punishment shall be increased by one third. 18. On 4 October 2006, Law No. 18.026 on “Cooperation with the International Criminal Court in Matters of the Fight against Genocide, War Crimes and Crimes against Humanity” was published. Article 22.1, entitled “Torture”, provides that any State agent or anyone acting with the authorization, support or acquiescence of one or more State agents, who inflicts any form of torture on a person deprived of liberty or under their custody or control or on a person who appears as a witness, expert or similar before the authorities, in any manner and for any motive, shall be punished with 20 months to 8 years of imprisonment. 19. According to article 22.2 of Law No. 18.026, the following are understood as being acts of torture: (a) any act through which severe pain or suffering, be it physical, mental or moral, is inflicted; (b) the subjection to cruel, inhuman or degrading punishment or treatment; and (c) any act aimed at annulling the personality or at diminishing the physical or mental capacities, even if it does not cause pain or physical fears, or any act foreseen in article 291 of the Penal Code (putting someone in a lethargic or hypnotic state, suppressing someone’s free will or intelligence), if this is done for reasons of interrogation, punishment or intimidation. 20. This prohibition of torture is applicable to individual crimes, as well as to those committed as crimes against humanity, as foreseen in the Rome Statute of the International Criminal Code, i.e. when committed as part of a widespread or systematic attack directed against any civilian population. In fact, according to this law, any single case of torture is considered a crime against humanity. In addition, the definition of torture encompasses acts of “cruel, inhuman or degrading treatment”. This entails that any single case of degrading or humiliating treatment, which on its own would not necessarily be the subject of a prosecution, could be considered as a crime against humanity. 21. In light of these legal shortcomings, the law is highly unlikely to be applied to individual crimes, as reflected by the experience of the last two years, where abuse of power and other similar crimes have been used to prosecute alleged cases of torture. The Special Rapporteur therefore strongly recommends separating the systematic practice of torture amounting to crimes against humanity from individual acts of torture that are 2 6 For the full text, see www.parlamento.gub.uy/Portadas/index1024.html. GE.09-17655