A/72/178
E.
Extra-custodial interpretation of the prohibition
37. As the below examples illustrate, the jurisprudence of universal and regional
oversight mechanisms confirms the applicability of the prohibition of torture and
other cruel, inhuman or degrading treatment or punishment to the extra -custodial
use of force and provides guidance as to how the prohibition interrelates with the
use of force principles.
Committee against Torture
38. The Committee against Torture has repeatedly held that police brutality and
excessive use of force outside the context of detention can fall within its pur view
(for example, A/50/44, para. 126, CAT/C/VEN/CO/3-4, para. 12, CAT/C/TUR/CO/4,
para. 15, and CAT/C/KOR/CO/3-5, para. 13). 47 In V.L. v. Switzerland, a case
involving multiple rapes, the Committee noted that “the complainant was clearly
under the physical control of the police even though the acts concerned were
perpetrated outside formal detention facilities” (CAT/C/37/D/262/2005, annex,
para. 8.10). It found that State agents had inflicted severe pain and suffering on her,
for purposes such as interrogation, intimidation, punishment, humiliation and
discrimination based on gender, and concluded that “the sexual abuse by the police
in this case constitutes torture even though it was perpetrated outside formal
detention facilities” (ibid.).
Inter-American Court of Human Rights and Inter-American Commission on
Human Rights
39. Similarly, in the case of Rosendo Cantú et al. v. Mexico, the Inter-American
Court of Human Rights considered “that rape may constitute torture even when it
consists of a single act or takes place outside State facilities … because the
objective and subjective elements that define an act as torture do not refer to the
accumulation of acts or to the place where the act is committed, but rather to the
intention, the severity of the suffering and the purpose of the act”. 48 The
Inter-American Commission on Human Rights also regarded as torture the
intentional, violent beating of a person prior to arrest. 49
European Court of Human Rights
40. In Cestaro v. Italy and Bartesaghi Gallo and Others v. Italy, the European
Court of Human Rights found that the violent punching, kicking and beating with
rubber truncheons of antiglobalization protestors amounted to torture. The Court
noted that although none of the victims showed violence or resistance, and although
all of them were manifestly unarmed, asleep or sitting with their hands raised above
their heads, the police systematically and indiscri minately subjected each of them to
violent beatings, intentionally inflicting severe physical and psychological suffering
for purposes of retaliation and humiliation through the use of excessive,
indiscriminate and manifestly disproportionate force. 50
__________________
47
48
49
50
17-12326
See also Nowak and McArthur, The United Nations Convention against Torture: a Commentary,
pp. 567-568.
Inter-American Court of Human Rights, Rosendo Cantú et al. v. Mexico, Judgment of 31 August
2010, para. 118.
Inter-American Commission on Human Rights, “Gayle v. Jamaica, Merits”, paras. 59-64.
European Court of Human Rights, Cestaro v. Italy (application No. 6884/11), Judgment of
7 April 2015, paras. 170-190; and Bartesaghi Gallo and Others v. Italy (application
Nos. 12131/13 and 43390/13), Judgment of 22 June 2017, paras. 114 and 117.
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