OSCE/ODIHR Opinion on Article 235 of the Criminal Code of the Republic of Uzbekistan administrative, judicial and other measures to prevent and punish such practices.7 Additionally, they made it clear that “no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture”.8 2. The Definition of Torture under the UNCAT 15. As recommended by the UN Committee against Torture (hereinafter “the UNCAT Committee”), all States party to the UNCAT should adopt a definition of torture that reflects all of the elements contained in Article 1 of the UNCAT.9 Such definition should also be in accordance with Article 4 of the UNCAT which requires that attempt, complicity and participation in torture constitute criminal offences in the domestic legislation.10 It is welcome that Article 26 of the Constitution of Uzbekistan states that “[n]o one may be subject to torture, violence or any other cruel or humiliating treatment” and that the Supreme Court of Uzbekistan has taken a strong stand to require the use of the definition of torture contained in Article 1 of the UNCAT.11 However, the UNCAT Committee has noted that for judges, investigators and law enforcement personnel, the Criminal Code continues to be the most relevant law in this respect, thus demonstrating the need to adapt the definition contained in the Criminal Code to ensure that in practice, there is clear adherence to a definition that is in line with the UNCAT. 16. In principle, States parties may choose the measures through which they fulfil their obligations stemming from the UNCAT; however, such measures need to be effective and consistent with the object and purpose of the UNCAT.12 While States parties do not need to adopt exactly the same definition as the one provided in this instrument, serious discrepancies between the UNCAT’s definition and that incorporated into domestic law may create actual or potential loopholes for impunity.13 17. This is all the more important from an international law perspective. The legitimacy of international treaties stems from their homogeneous application, which requires to a certain extent that States parties adopt similar, even if not the same definition. This also has a potential impact on the ability of State authorities to prosecute alleged perpetrators of acts of torture committed in other countries. 18. Finally, the definition of any criminal offense must respect the principle of legality (nullum crimen, nulla poena sine lege) which stipulates that an act can be punished only if, at the time of its commission, the act was the object of a valid, sufficiently precise, 7 8 9 10 11 12 13 See par 23 of the OSCE Vienna Document (1989). See also the Istanbul Charter of 1999 where OSCE participating States committed themselves to the eradication of torture and other cruel, inhumane or degrading treatment or punishment in the OSCE area and to “promote legislation to provide procedural and substantive safeguards and remedies to combat these practices.” See par 16 of the OSCE Copenhagen Document (1990). See also the 1990 Charter of Paris, the 1991 Moscow Document, the 1994 Budapest Document, the 1999 Istanbul Document and the 2005 Ljubljana Document. For the case of Uzbekistan, see par 10 of the 2013 Concluding Observations of the UNCAT Committee on the 4th periodic report of Uzbekistan, CAT/C/UZB/CO/4, 10 December 2013, available at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CAT%2fC%2fUZB%2fCO%2f4&Lan g=en. Op. cit. footnote 6, par 8 (General Comment No. 20 of the Human Rights Committee). Op. cit. footnote 9, par 10 (2013 Concluding Observations of the UNCAT Committee on Uzbekistan). See par 6 of the General Comment No. 2 of the UNCAT Committee on Implementation of Article 2 of the UNCAT, UN Doc. CAT/C/GC/2/CRP.1/Rev.4 (23 November 2007), available at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CAT%2fC%2fGC%2f2&Lang=en. Ibid. par 9 (General Comment No. 2 of the UNCAT Committee). 6