ODIHR Opinion on Definition of Torture and its Absolute Prohibition in Polish Legislation III. EXECUTIVE SUMMARY 9. ODIHR welcomes the willingness of the Office of the Commissioner for Human Rights to seek international expertise in relation to the definition of torture, and hopes that this Opinion will provide further guidance on how the relevant legislation could be brought in line with international human rights obligations and OSCE commitments primarily related to the definition of torture and other ill-treatment in the Polish legislation. 10. The absolute prohibition of torture and other ill-treatment imposes a number of obligations on States, including the primacy of defining torture and other ill-treatment in national legislation in accordance with international law. While States do not need to adopt the exact definition as provided in the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), they should ensure that all the elements of the definition contained in Article 1 of the UNCAT, which include any act inflicting severe pain or suffering, whether physical or mental; the element of intent; the specific purpose; and the involvement of a State official, at least by acquiescence, are transcribed into the criminal legislation. 11. Poland is party to a number of regional and international agreements and treaties prohibiting torture and other ill-treatment. Furthermore, the right to be free from torture and other ill-treatment is guaranteed by Article 40 of the 1997 Constitution of the Republic of Poland, which provides that “[n]o one may be subjected to torture or cruel, inhuman, or degrading treatment or punishment.” The prohibition of torture is further mentioned in the Penal Code of Poland under the “offences against peace, humanity and war crimes” (Articles 118a and 123) as well as “offences against the administration of justice” (Articles 246 and 247). While this inclusion is welcomed, it has a limited scope and torture and other ill-treatment are not explicitly defined in legislation, in particular, in the Penal Code as required by the UNCAT. Furthermore, the punishment suggested for acts of torture in those provisions do not reflect the gravity of the crime. In its concluding opinion on Poland, the CAT recommended that “the State party take effective legislative measures to include torture as a separate and specific crime in its legislation and to adopt a definition of torture that covers all the elements contained in article 1 of the Convention.” It further noted that provisions of the Penal Code that are applied in cases of torture do not reflect the gravity of the crime of torture and therefore do not provide for commensurate punishment for the perpetrators. 12. The central issues for consideration by Polish authorities relate to the obligation of States to ensure that acts of torture are serious criminal offences within its legal system and the associated definition of torture which includes the nature, intent and purpose of the act of torture as well as an involvement of a public official. Article 4 of the UNCAT requires each State to ensure that torture is included as a specific crime in their national criminal law. Thus, ODIHR makes the following key recommendation: A) The definition of torture within Polish legislation should be broad enough to encompass all acts against person’s integrity that have been qualified as torture and other ill-treatment under international law, and should include all the elements envisaged by Article 1 of the UNCAT, particularly, an act inflicting severe pain or suffering, as well as the intent and purpose of an act or omission. In addition, the relevant legislation should explicitly expand on the State’s full responsibility for all acts of torture committed in any territory under its jurisdiction, when inflicted by or at the instigation of or with the consent or 4