OSCE/ODIHR Opinion on Article 235 of the Criminal Code of the Republic of Uzbekistan IV. 1. ANALYSIS AND RECOMMENDATIONS International Standards relating to the Prohibition of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 11. Article 1 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter “the UNCAT”)1 defines “torture” as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” 12. Article 16 of the UNCAT also requires States to prevent “other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture […], when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity”. While the UNCAT does not provide a definition of such acts, the UN Special Rapporteur on Torture has highlighted that the decisive criteria for distinguishing torture from cruel, inhuman and degrading treatment are the purpose of the conduct and the powerlessness of the victim, rather than the intensity of the pain or suffering inflicted.2 13. Article 7 of the International Covenant on Civil and Political Rights (hereinafter “the ICCPR”) states that “[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”.3 While the ICCPR does not contain a definition of these terms, the UN Human Rights Committee (hereinafter “the HRC”) has indicated that the assessment of whether a particular treatment constitutes a violation of Article 7 of the ICCPR “depends on all circumstances of the case, such as the duration and manner of the treatment, its physical or mental effects as well as the sex, age and state of health of the victim.”4 Elements such as the victim’s age and state of health may therefore aggravate the effect of certain treatment so as to bring it within the scope of the prohibition of Article 7 of the ICCPR.5 In contrast to the UNCAT, the ICCPR does not require a certain level of involvement or acquiescence by a public official for an act to be qualified as torture or ill-treatment and the State has a duty to protect whether the reprehensible acts are inflicted by people acting in their official capacity, outside their official capacity or in a private capacity.6 14. OSCE participating States have committed themselves to prohibit torture and other cruel, inhuman or degrading treatment or punishment and to take effective legislative, 1 2 3 4 5 6 UN Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by General Assembly resolution A/RES/39/46 on 10 December 1984. The Republic of Uzbekistan acceded to this Convention on 28 September 1995. See par 39 of the Report of the UN Special Rapporteur on the Question of Torture, UN Doc. E/CN.4/2006/6, 23 December 2005, available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G05/168/09/PDF/G0516809.pdf?OpenElement. UN International Covenant on Civil and Political Rights, adopted by General Assembly resolution 2200A (XXI) on 16 December 1966. The Republic of Uzbekistan acceded to this Covenant on 28 September 1995. See par 9.2 Vuolanne v. Finland, HRC Communication No. 265/1987, UN Doc. Supp. No. 40 (A/44/40), 7 April 1989, available at http://www1.umn.edu/humanrts/undocs/session44/265-1987.htm. Ibid. See par 2 of the General Comment No. 20 of the Human Rights Committee on Article 7 of the ICCPR (1992) available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G08/422/35/PDF/G0842235.pdf?OpenElement (page 200). 5