7.2 Adequacy of punishment
7.2.1 Findings of serious ill-treatment should be classified in accordance
with the specifically enacted legislation and lead to appropriate
criminal, administrative, and disciplinary penalties provided by
law and which are proportionate to the gravity of the ill-treatment
involved.
In order to deter state authorities from mistreating those in their control, there
must be serious consequences for perpetrators. The international standards do
not contain any formal scales of appropriate punishments. Until recently, the
Strasbourg Court was also less prescriptive. However, the guidelines in question
reflect the comparatively recent development in its case law in this regard.
In its relevant deliberations the Court has completed a “loop” of interrelation
between the substantial standards and procedural aspect of the prohibition
of ill-treatment. It has emphasized that the obligation to combat impunity is
an indispensable prerequisite of its prevention. In Valeriu and Nicolae Rosca
v. Moldova the Strasbourg Court stressed that an appropriate punishment in
terms of both adequacy of the sanction imposed and the specific classification
of the wrongdoing as ill-treatment are indispensable for combating it. It is to
be noted in this regard that the relevant section of the judgment is entitled
“Preventive effect of the prohibition of ill-treatment”. With this the Court has
spelled out that the existence of relevant substantial criminal law framework
and its appropriate application constitute part of the obligation to prevent
ill-treatment. 198 The judgment in issue includes the following paragraph:
“Lastly, and equally importantly, the Court believes that the preventive effect of
legislation passed specifically in order to address the phenomenon of torture
can only be ensured if such legislation is applied whenever the circumstances
so require. In the present case, the CPT found (see paragraph 24 of the 2001 CPT
report, cited in paragraph 41 above) that the person examined on 14 June 2001
had been beaten on the soles of his feet (falaka), and noted that another person
had also been ill-treated there at the same time. The Court already established
that those two persons were the applicants (see paragraph 54 above). The
Court recalls that beating a person’s soles, or falaka, is a practice which is always
intentional and can only be regarded as torture (see Corsacov cited above, §
65, and Levinţa cited above, § 71). In such circumstances, the failure to initiate
criminal proceedings under Article 101/1 of the Criminal Code (torture), without
any explanation as to the choice of another type of offence (abuse of power), is
198. Valeriu and Nicolae Rosca v. Moldova, judgment of 20 October 2009, paras. 71-75.
Effective investigation of ill-treatment – Guidelines ► Page 66
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