Article 144(3)(1) of the Argentina Penal Code also contains a penalty for torture
committed by private individuals.43
In the Brazil’s law on the Crimes of Torture, the crime of torture includes acts by both
State officials and private actors. However, when torture is committed by a public
official, the penalty is increased by one third.44
In the Prevention and Prohibition of Torture Act of Uganda, the definition of torture
consists of an act ‘inflicted on a person (…) by any person whether a public official or
other person acting in an official or private capacity.’45
5. States parties may consider criminalising cruel, inhuman or
degrading treatment or punishment 43 44 45
One of the recurrent questions is whether there is an obligation on States to
criminalise cruel, inhuman or degrading treatment or punishment (CIDTP).
The wording of article 16 of the Convention requires that State parties “shall
undertake to prevent […] other acts of cruel, inhuman or degrading treatment
or punishment which do not amount to torture.” The separation of torture and
CIDTP into distinct articles in the Convention was deliberate, because the drafters
intended some of the State obligations to apply only to torture.46 In particular, the
obligation in article 4 to criminalise torture through domestic legislation was not
intended to apply to CIDTP.47 In rare concluding observations, the Committee has
commented on the absence of national law provisions criminalising CIDTP,48 but
the Convention is not generally considered to require that States criminalise such
treatment as a separate offence.49
States are therefore free to adopt a legislation criminalising CIDTP as a separate
crime but as seen in the introduction, States have in any case the obligation
under article 16 of the Convention to prevent such acts. The Committee has in its
General Comment N°3 indicated that victims of CIDTP have a right to an effective
remedy and redress. 50 If States decide to criminalise CIDTP as a separate crime,
the Committee has recommended keeping the notion separate from the notion
of torture. 51 Along the same lines, it is advised that comprehensive legislation
be more explicit than the Convention as to what constitutes CIDTP as there is
no precise definition of CIDTP in international law. States that have criminalised
CIDTP have chosen to adopt different approaches. Some have defined CIDTP,
some have not defined it in their legislation while others have left it to judges to
43
Argentina, Penal Code, Consolidated text of Law N°11.179 approved by Decree N°3992/84 of 21 December
1984 as last amended by Law N°26.842 of 19 December 19 2012, article 144(3)(1), available at
http://www.wipo.int/wipolex/en/text.jsp?file_id=283801 (last accessed in February 2016).
44
Brazil, Law N°9.455 of 7 April 1997, article 1, available at http://www.planalto.gov.br/ccivil_03/leis/L9455.
htm (last accessed in February 2016).
45
Uganda, the Prevention and Prohibition of Torture Act, op. cit. 28, section 2(1).
Manfred Nowak and Elizabeth McArthur, the United Nations Convention against Torture: A Commentary
(Oxford University Press 2008), pp. 229 and 230.
46
Ibid, p. 247.
47
CAT, Concluding observations on Ukraine (11 December 2014), UN Doc. CAT/C/UKR/CO/6, § 134;
CAT, Concluding observations on Sweden (6 June 2002), UN Doc. CAT/C/CR/28/6, § 7(a);
CAT, Concluding observations on Kazakhstan (12 December 2014,) UN Doc. CAT/C/KAZ/CO/3, § 7(a).
48
49
Rodley and Pollard, op. cit. 10, § 118.
50
CAT, General Comment N°3, op. cit. 11, § 1. See also chapter 8 of the guide on the right to redress.
51
CAT, Concluding observations on Germany (12 December 2011), UN Doc. CAT/C/DEU/CO/5, § 9.
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