and States have to bear responsibility for these acts under
specific circumstances.
In assessing whether States took adequate steps in order
to fulfil their obligation to protect individuals against human rights violations by other individuals, the due diligence
principle has to be applied. The Committee against Torture points out that States bear responsibility when acts
of torture or ill-treatment are being committed by private
individuals, if State authorities know or have reasonable
grounds to believe that these acts are being committed. If
State officials fail to exercise due diligence to prevent and
investigate these acts, prosecute and punish private actors,
the respective States may be held responsible under UNCAT and be seen as consenting to or acquiescing in these
acts of torture or ill-treatment. The State’s inaction would
lead to a de facto permission of these acts.57
Also the ECtHR ruled that States not only have an obligation to refrain from committing any act of torture or other
forms of ill-treatment, but also to protect persons under its
jurisdiction from being subject to torture or other forms
of ill-treatment by non-State actors. States also have the
obligation to investigate any act of torture or other forms
of ill-treatment committed by private persons.58 In Opuz
v Turkey the Court found a violation of the prohibition of
torture or other forms of ill-treatment because the State
failed to take protective measures in the form of effective
deterrence against serious breaches of the applicant’s personal integrity by her ex-husband.59 The applicant had been
threatened and assaulted for several years by her then husband; the applicant’s mother was killed by him.
If all other requirements of the definition of torture in a
case of trafficking in human beings are also fulfilled, the
responsibility for these acts of torture committed by private
persons can be attributed to the State. The State failed to act
with due diligence to protect victims from being trafficked
by private actors.60 Also in cases in which trafficking in human beings would be assessed as CIDT, States can be held
accountable when they fail to act and implement measures
CAT General Comment
No. 2: Implementation of article 2 by States parties
Tackling impunity for Non-State Actors – How has the
Committee against Torture interpreted the ‘acquiescence of a public official’
requirement in the Convention’s definition of torture and how does this
compare with the concept of ‘due diligence’ developed by other regional
mechanisms?
against violence by private parties that the States are aware
of or could know about. Forms of well-known and wide
spread violence by private parties are for example corporal
punishment in the family, domestic violence against women
and children and trafficking in women and children.61
To conclude, in general there is a certain tendency to attribute State responsibility for acts of torture committed
by private persons. This tendency is also reflected in some
national laws on torture and other forms of ill-treatment as
well as sporadically in court cases which do not require the
involvement of a State official.
Examples of legislation on torture and other
forms of ill-treatment which include acts of
private persons
Armenia: CC 119, Torture: Torture is wilfully causing
strong pain or bodily or mental sufferance to a person, if
this did not cause consequences envisaged in Articles 112
[Infliction of wilful heavy damage to health] and 113
[Infliction of wilful medium-gravity damage to health], is
punished with imprisonment for the term up to 3 years.
Torture committed by a group of persons or by an
organized group is punished with imprisonment of 3 to 7
years.
Estonia: CC 122, Torture: Continuous physical abuse
or abuse which causes great pain is punishable by a
pecuniary punishment or up to 5 years’ imprisonment.
France: CC 222-1, Torture and acts of barbarity: The
subjection of a person to torture or to acts of barbarity is
punished by fifteen years’ criminal imprisonment.
The act committed by a person holding public authority
and in the exercise of this function is punished with
imprisonment of 20 years.
Montenegro: CC 167, Maltreatment and torture: Anyone
who causes great suffering of others with the aim to obtain
an information or confession from them or a third party,
or to intimidate them or a third party, or to exert pressure
on them, or who does it from some other motives
grounded on any form of discrimination, shall be
sentenced to imprisonment not exceeding three years.
The act committed by a person acting in an official
capacity during performance of his/her duties is punished
with one to five years of imprisonment.
Case of Opuz v Turkey Application
no. 33401/02
Report of the Special Rapporteur on torture
and other cruel, inhuman or degrading treatment or punishment,
The United Nations Convention against Torture:
A Commentary
21
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