40 JALLOH v. GERMANY JUDGMENT – CONCURRING OPINION OF JUDGE ZUPANČIČ (2) It requires specific intent (dolus specialis), namely, conduct must be intended or acquiesced in not only to inflict severe pain or suffering, but also (a) to obtain from the person tortured or from a third person information or a confession, (b) to punish him for an act he or a third person has committed or is suspected of having committed, (c) to intimidate or coerce him or a third person, or (d) to so act for any reason based on discrimination of any kind. Because acquiescence on the part of the public official suffices, the above dolus specialis may at a minimum also be dolus eventualis in cases where, for example, the public official in charge at the police station knowingly acquiesces in torture perpetrated by his subordinates. Moreover, the phrase defining the specific intent is open-ended (“for such purposes as”), that is to say, it permits the use of analogia inter legem. Finally, torture is a result crime; there is no crime of torture unless there is, (3) as a consequence of the conduct of the public officials, (4) severe physical or mental pain or suffering. Therefore, the key question in the case before us, and increasingly so in other similar considerations, is whether a particular conduct causes “severe pain and suffering” – or something less than that1. Torture, in other words, is an aggravated form of inhuman and degrading treatment2. Whether in a particular case the pain or suffering of the victim of inhuman and degrading treatment was severe, is a question of fact to be determined by the criminal 1. “To require a threshold showing of an ‘objective’ injury, the sort of thing that might reveal itself on an X-ray, or in missing teeth, or in a bruised and battered physical appearance, would confer immunity from claims of deliberate indifference on sadistic guards, since it is possible to inflict substantial and prolonged pain without leaving any ‘objective’ traces on the body of the victim” (Judge Posner in Cooper v. Casey, 97 F3d 914, 917 (Seventh Circuit 1996) (citations omitted)). Furthermore, substantial and prolonged pain can be psychological as well as physical. “Mental torture is not an oxymoron, and has been held or assumed in a number of prisoner cases ... to be actionable as cruel and unusual punishment” (Judge Posner in Thomas v. Farley, 31 F3d 557, 559 (Seventh Circuit 1994)). In a case involving cross-gender body searches it has been held that “severe psychological injury and emotional pain and suffering” counted as “infliction of pain” under the Eighth Amendment (Judge O'Scannlain in Jordan v. Gardner, 986 F2d 1521, 1525, 1528 (Ninth Circuit 1992)). “Many things – beating with a rubber truncheon, water torture, electric shock, incessant noise, reruns of ‘Space 1999’ – may cause agony as they occur yet leave no enduring injury. The State is not free to inflict such pains without cause just so long as it is careful to leave no marks” (Judge Easterbrook in Williams v. Boles, 841 F2d 181, 183 (Seventh Circuit 1988)). At http://www.yale.edu/lawweb/ avalon/diana/harris/110998-2.htm. 2. UNCAT, Article 16 § 1: “Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in Article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in Articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment.” (emphasis added)