OSCE/ODIHR Opinion on Article 235 of the Criminal Code of the Republic of Uzbekistan 3. Punishment Commensurate with the Gravity of the Crime 3.1 Exclusion of Defences, Amnesties, Pardons, Statutes of Limitations and Immunities in Cases of Torture or Inhuman or Degrading Treatment 33. The prohibition of torture and of ill-treatment is recognized as absolute and nonderogable.39 No exceptional circumstances whatsoever may be invoked by a State to justify acts of torture, even in a state of war, internal political instability or any other public emergency and even under threat of terrorist acts or violent crimes.40 Furthermore, amnesties have been recognized as incompatible with the duty of States parties to investigate acts of torture, to guarantee freedom from such acts within their jurisdiction and to ensure that they do not occur in the future.41 The non-derogability of the prohibition of torture also implies that an order of a superior or public authority can never be invoked as a defence and that subordinates should be held to account individually.42 The UNCAT also considers that no statute of limitations should apply to the crime of torture43 and that no defence should be available.44 It is also acknowledged that mitigating circumstances should not apply in the case of torture.45 34. The UNCAT Committee noted that in Uzbekistan, amnesties continue to be awarded to individuals who have been convicted of violating Article 235 of the Criminal Code, and recommended that the practice of granting amnesties to persons convicted of torture or ill-treatment be abolished.46 On several occasions, the UNCAT Committee has highlighted the importance to provide prompt and fair prosecution and punishment of perpetrators of torture or ill-treatment.47 Since amnesties reduce or abolish the punishment of perpetrators, they negate the key principle of having a punishment commensurate with the gravity of the crime of torture. For this reason, it is reiterated that there should be no amnesty for cases of torture. 35. Under the Criminal Code of Uzbekistan, certain defences or attenuating circumstances, as well as statutes of limitations are generally applicable to all offences, including Article 235 of the Criminal Code. For instance, Article 40 of the Criminal Code provides for exculpatory circumstances including “execution of an order or another 39 40 41 42 43 44 45 46 47 Op. cit. footnote 12, pars 1 and 3 (General Comment No. 2 of the UNCAT Committee). See also op. cit. footnote 6, par 3 (General Comment No. 20 of the Human Rights Committee). Op. cit. footnote 12, par 5 (General Comment No. 2 of the UNCAT Committee). Op. cit. footnote 12, par 5 (General Comment No. 2 of the UNCAT Committee) and par 38 of the General Comment No. 3 (2012) on the implementation of Article 14 of the UNCAT (CAT/C/GC/3) available at http://www2.ohchr.org/english/bodies/cat/docs/GC/CAT-C-GC-3_en.pdf. See also op. cit. footnote 6, par 15 (General Comment No. 20 of the Human Rights Committee). Article 2 of UNCAT and par 26 of the General Comment No. 2 of the UNCAT Committee. See e.g. par 8 of the Concluding Observations of the UNCAT Committee on Japan, CAT/C/JPN/CO/2, 28 June 2013, available at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CAT%2fC%2fJPN%2fCO%2f2&Lan g=en. See e.g. par 10 of the Concluding Observations of the UNCAT Committee on the United Kingdom, CAT/C/GBR/CO/5, 24 June 2013, available at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CAT%2fC%2fGBR%2fCO%2f5&La ng=en, where it states for instance that the defence of “lawful authority, justification or excuse” to a charge of official intentional infliction of severe pain or suffering is contrary to the principle of absolute prohibition of torture. See also par 14 of the Concluding Observations of the UNCAT Committee on Israel, CAT/C/ISR/CO/4, 23 June 2009, available at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CAT%2fC%2fISR%2fCO%2f4&Lan g=en regarding the removal of the ‘necessity defense’ exception which arises in cases of ‘ticking bombs,’ i.e., interrogation of terrorist suspects or persons otherwise holding information about potential terrorist attacks. Op. cit. footnote 14, page 37 (2013 APT Report on Key Issues in Drafting Anti-Torture Legislation). Op. cit. footnote 9, par 10 (2013 Concluding Observations of the UNCAT Committee on Uzbekistan). Op. cit. footnote 12, par 5 (General Comment No. 2 of the UNCAT Committee). 12