OSCE/ODIHR Opinion on Article 235 of the Criminal Code of the Republic of Uzbekistan without specifying that this would need to be a close relative. In order to avoid a too restrictive application of Article 235, it is recommended to adapt its wording to Article 1 of the UNCAT, so that it also refers more generally to third persons, without specifying who these third persons shall be. 2.3. Involvement of Public Officials or Other Persons Acting in an Official Capacity a) Direct Perpetrators 28. Article 235 of the Criminal Code refers to the conduct of “an inquiry officer, an investigator, a prosecutor or any other employee of law-enforcement agency [and] penitentiary facility”. This personal scope is more limited than that of Article 1 of the UNCAT, which does not only cover acts of law enforcement officials, but extends to any person acting in an official capacity.28 29. In fact, the UNCAT imposes obligations on States parties as regards acts and omissions of their officials and others, including agents, private contractors, and other persons acting in official capacity or acting on behalf of the State, in conjunction with the State, under its direction or control, or otherwise under colour of law, in all context of custody or control (see par 25 supra which provides examples of such contexts).29 The UN Special Rapporteur on Torture has highlighted that the prohibition against torture relates not only to public officials, such as law enforcement agents in the strictest sense, but may apply also to doctors, health professionals and social workers, including those working in private hospitals, other institutions and detention centres.30 For instance, this would include e.g. members of the defence/security services, border management and immigration officials31 as well as medical professionals that may play a role, direct or indirect, in torture.32 Non-state officials and private actors may additionally be subject to such prohibition if they act in an official capacity.33 It is recommended to supplement Article 235 of the Criminal Code accordingly. b) 30. 28 29 30 31 32 33 34 Indirect Perpetrator The UNCAT Committee further recommended in its 2013 Concluding Observations on Uzbekistan to extend Article 235 of the Criminal Code to ensure that “officials who consent to or acquiesce in torture perpetrated by third parties, are classified under the law as perpetrators of torture rather than, as is presently the case, as persons who aid and abet torture”.34 This recommendation is of particular significance since the threshold of the UNCAT relating to “acquiescence” (i.e. the lowest form of See op. cit. footnote 9, par 10 (2013 Concluding Observations of the UNCAT Committee on Uzbekistan). Op. cit. footnote 12, par 15 (General Comment No. 2 of the UNCAT Committee). See par 51 of the Report of the UN Special Rapporteur on Torture, A/63/175, 28 July 2008, available at http://daccessdds-ny.un.org/doc/UNDOC/GEN/N08/440/75/PDF/N0844075.pdf?OpenElement. See also pars 15 and 17 of the General Comment No. 2 of the UNCAT Committee. See e.g. par 10 of the Concluding Observations of the UNCAT Committee on Japan, CAT/C/JPN/CO/1, 3 August 2007, available at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CAT%2fC%2fJPN%2fCO%2f1&Lan g=en. See par (n) 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. Op. cit. footnote 12, par 18 (General Comment No. 2 of the UNCAT Committee). Op. cit. footnote 9, par 10 (2013 Concluding Observations of the UNCAT Committee on Uzbekistan). See also pars 4649 of the Conclusions and Recommendations of the UNCAT Committee in the 3rd periodic report submitted by the Republic of Uzbekistan, CAT/C/UZB/CO/3, available at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CAT%2fC%2fUZB%2fCO%2f3&Lan g=en. 10