OSCE/ODIHR Opinion on Article 235 of the Criminal Code of the Republic of Uzbekistan very much depend on how it is interpreted by the respective criminal courts. Additionally, it is doubtful whether the wording of Article 235 of the Criminal Code would cover the particular situation where public authorities/law enforcement officers fail to intervene where they know or should have reasonably known that acts amounting to torture will be carried out by private individuals. To avoid any discrepancy in its interpretation and actual application, it is advisable to expand Article 235 of the Criminal Code to expressly include omissions. 22. In any case, the wording of Article 235 of the Criminal Code should be broad enough to encompass various grave violations of a person’s integrity which have been qualified as torture by the UNCAT Committee.19 23. Article 1 of the UNCAT further states that the physical pain or suffering caused would need to be “severe”. Article 235 of the Criminal Code does not use such qualification and focuses on the coercive act committed by the perpetrator, rather than on the pain or suffering caused to the victim. Therefore, the drafters and stakeholders should review, and ideally revise Article 235 of the Criminal Code to ensure that the domestic courts assess the effect of the mental or physical pressure on the victim, taking into account all the circumstances, 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, since the same act may have a different impact depending on the specific situation and vulnerability of the victim.20 2.2. Intention of the Perpetrator and Purpose of the Act 24. 19 20 21 22 23 Article 1 of the UNCAT states that torture needs to be “intentionally inflicted” and thus requires a form of intent on the part of the perpetrator. The UNCAT Committee clarified that the element of intent and purpose does not involve a subjective inquiry into the motivations of the perpetrators but rather must result from objective determinations under the circumstances,21 i.e., whether the consequences of the conduct were reasonably foreseeable by the perpetrator.22 Consequently, due consideration should be given to the purposive element. While the list of purposes contained in Article 1 of UNCAT23 is not intended to be exhaustive but rather indicative, the purposes See the section on “Typology of acts that may amount to torture and/or cruel, inhuman and degrading treatment” in the Report of the UN Voluntary Fund for Victims of Torture on the Interpretation of Torture in the Light of the Practice and Jurisprudence of International Bodies (2011), pages 9-27, available at http://www.ohchr.org/Documents/Issues/Torture/UNVFVT/Interpretation_torture_2011_EN.pdf. These include but are not limited to violence against women and girls, as well as the failure to prevent and protect victims from gender-based violence, such as domestic violence, rape, female genital mutilation and trafficking; the use of solitary confinement (see e.g. pages 42-43 of the Guide to Jurisprudence on Torture in International Law jointly published in 2008 by the Association for the Prevention of Torture (APT) and the Center for Justice and International Law (CEJIL), available at http://www.apt.ch/content/files_res/jurisprudenceguide.pdf); the administration in detention and psychiatric institutions of certain medical treatment of an intrusive and irreversible nature, when they lack a therapeutic purpose or aim at correcting or alleviating a disability, if enforced or administered without the free and informed consent of the person concerned (see par 47 of the Report of the UN Special Rapporteur on Torture, A/63/175, 28 July 2008, available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N08/440/75/PDF/N0844075.pdf?OpenElement). See par 9.2 Vuolanne v Finland, HRC Communication No. 265/1987, 7 April 1989. Op. cit. footnote 12, par 9 (General Comment No. 2 of the UNCAT Committee). See Hathaway, Oona; Nowlan, Aileen; and Spiegel, Julia, "Tortured Reasoning: The Intent to Torture under International and Domestic Law" (2012). Faculty Scholarship Series. Paper 4723. http://digitalcommons.law.yale.edu/fss_papers/4723. i.e., “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” (Article 1 of the UNCAT). 8