56
United Nations Convention Against Torture and its Optional Protocol
torture in accordance with Article 1. In EN v Burundi, the State party argued that
the act of severe beatings committed by police officers in a police station after arrest cannot be classified as torture because the Burundian Criminal Code requires
that acts of torture must be committed to obtain information or a confession.188 The
Committee concluded that the beating was most likely undertaken in order to punish
him for an act he was thought to have committed. In both of the cases the Committee
seems to have followed the approach stipulated in its General Comment, namely that
the elements of intent and purpose do not involve a subjective inquiry into the motivation of the perpetrators, but there must instead be ‘objective determinations under
the circumstances’.189
113 The Committee has recognized that in comparison to torture, other forms of
ill-treatment do ‘not require proof of impermissible purposes’ and therefore has acknowledged purpose as a decisive criterion to distinguish torture from other forms of
ill-treatment.190 Thus the definition of torture does not necessarly depend on a subjectively verified purpose or intensity of the inflicted pain or suffering, but on the intentionality and purposefulness of that infliction in combination with the powerlessness of the
victim.191
3.1.5 Powerlessness
114 All purposes listed in Article 1 as well as the travaux préparatoires of both the
Declaration and the Convention seem to refer to a situation in which the victim of torture is a detainee or a person ‘at least under the factual power or control of the person
inflicting the pain or suffering’,192 and where the perpetrator uses this unequal and
powerful situation to achieve a certain effect, such as the extraction of information, intimidation, or punishment. The ‘ideal’ environment for torture is prolonged incommunicado detention in a secret place, ie a situation in which the victim is totally subordinated
to the will and power of the torturer. Such a situation of powerlessness strongly resembles
the condition of slavery, and both torture and slavery can be described as most direct and
brutal attacks on the core of human dignity and personality. This link between the right
to human dignity and the absolute prohibition of torture and slavery has been established
most convincingly in Article 5 ACHPR.193
115 The UNSRT has confirmed that powerlessness means that ‘someone is overpowered, in other words, has come under the direct physical or equivalent control of the
EN v Burundi, No 578/2013 (n 106) para 4.4.
CAT/C/GC/2 (n 88) para 9. For EN v Burundi, No 578/2013 (n 106) see CAT/C/56/D/578/2013,
paras 4.4, 7.2, 7.3.
190
CAT/C/GC/2 (n 88) para 10. See also above 3.1.2.1.
191
A/HRC/13/39 (n 99), para 60; A/HRC/13/39/Add.5 (n 99) para. 37; A/72/178 (n 99) para 31.
192
Burger and Danelius (n 32) 120. See also Rodley, ‘The Definition(s) of Torture’ (n 23) 484: ‘It is no accident that the purposive element of torture reflects precisely state purposes or, at any rate, the purposes of an
organized political entity exercising effective power’.
193
‘Every individual shall have the right to the respect of the dignity inherent in a human being and to the
recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade,
torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.’ See also Chapter I of the
EU Charter of Fundamental Rights on human dignity. In the State reporting procedure under the CAT the
Committee has also asked Mauritania to criminalize slavery and to include an adequate definition, covering
all forms of slavery in its legislation. See CAT, ‘Concluding Observations: Mauritania’ (2013) UN Doc CAT/
C/MRT/CO/1, para 21.
188
189
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