OSCE/ODIHR Opinion on Article 235 of the Criminal Code of the Republic of Uzbekistan participation) is likely to be much lower than what is set out in Article 28 of the Criminal Code (on complicity) which requires a certain degree of active involvement either in the form of directing the preparation or commission, actively inciting or assisting (e.g. with advice, directions, or by providing the means or concealment) a criminal act. Acquiescence may actually result from the mere failure of state officials to exercise due diligence to prevent, investigate, prosecute and punish non-State officials or private actors, whom they know or have reasonable grounds to believe will commit acts of torture or ill-treatment.35 In that case, the UNCAT Committee considers that the state officials should be considered as authors, complicit or otherwise responsible under the UNCAT for instigating, consenting to or acquiescing in such impermissible acts committed by non-State officials or private actors.36 31. Article 235 of the Criminal Code should be supplemented to ensure that in case impermissible acts are committed by non-State officials or private actors, the state officials will be held liable for torture or and other cruel, inhuman or degrading treatment or punishment. Such situation cannot adequately be addressed through Article 28 of the Criminal Code (on complicity). In the case of complicity, Article 30 of the Criminal Code states that the “instigator” or the “head for crime” shall be subject to liability under the same article of the Criminal Code as the “committers” (direct perpetrators). In cases of torture, however, the direct perpetrators of such acts cannot be held liable under Article 235 of the Criminal Code if they are non-State officials or private actors not acting in an official capacity, as this provision only addresses acts committed by public officials. 32. The UNCAT Committee has interpreted “complicity or participation” as provided in Article 4 par 1 of the UNCAT to include acts such as incitement, instigation, superior order or instructions, consent, acquiescence and concealment. The UNCAT Committee has clarified that superior officials will be guilty of complicity (or acquiescence) if they know or should have known that torture was being practiced by personnel under their command i.e., if they tacitly consented to torture.37 Consequently, as appropriate, Article 235 of the Criminal Code shall ensure that persons in the chain of command (i.e. those exercising authority, such as those who supervise the perpetrator or are in charge of the place where the acts was perpetrated), who instigate, consent or acquiesce to acts involving torture, are criminally liable for torture in the same manner as the direct perpetrator(s).38 35 36 37 38 Op. cit. footnote 12, par 18 (General Comment No. 2 of the UNCAT Committee). See also Dzemaji v. Yugoslavia, UNCAT Committee CAT/C/29/D/161/2000 (2002) available at http://www1.umn.edu/humanrts/cat/decisions/1612000.html. Op. cit. footnote 12, par 18 (General Comment No. 2 of the UNCAT Committee). See e.g. par 5(b) of the Conclusions and Recommendations of the UNCAT Committee on Azerbaijan, CAT/C/CR/30/1, 14 May 2003, available at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CAT%2fC%2fCR%2f30%2f1&Lang= en. Op. cit. footnote 12, pars 10 and 26 (General Comment No. 2 of the UNCAT Committee). See also par 202 of the Addendum to the Report of the UN Special Rapporteur on Follow-up to the Recommendations, E/CN.4/2005/62/Add.2, 21 February 2005, available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G05/111/52/PDF/G0511152.pdf?OpenElement and par (d) of the General Recommendations of the Special Rapporteur on Torture (2003) E/CN.4/2003/68, available at http://www2.ohchr.org/english/issues/docs/recommendations.doc. 11