60 United Nations Convention Against Torture and its Optional Protocol by public servants charged with the arrest, custody, supervision, escort or interrogation of a person under suspicion, arrest, detention or summoned to appear before a court or serving a sentence’.214 Regarding the reports of Cap Verde and Macao, the Committee criticized that torture is limited to acts that are committed by persons vested with specific public functions listed in the article or persons usurping those functions.215 It follows that the Committee interprets the term ‘public official’ in a broad sense. 124  In the individual complaints procedure, the Committee has outlined how it deals with the involvement of public officials, when States argue that its representatives are not responsible for torturing or ill-​treating individuals: in EN v Burundi, the State party argued that actions of the police were unplanned, police officers were not acting on orders, and following from this, the injuries inflicted could not be classified as torture.216 The Committee observed that the persons beating and interrogating the complainant were ‘uniformed police officers armed with rifles and belts. Furthermore, the complainant was severely beaten for two hours by police officers within the police station itself.’217 Consequently, the Committee concluded that the acts were committed by ‘agents of the State party acting in an official capacity’218 and with the other criteria fulfilled as well, found an act of torture. Similarly, in the case Oleg Evloev v Kazakhstan, the State party did not contest the physical injuries of the complainant but argued, that there was no involvement by officials in the infliction of these injuries.219 The Committee concluded that the complainant was placed in pretrial investigation at the premises of the Ministry of Internal Affairs in Astana at the time his injuries were incurred. Under these circumstances, the State party should be presumed liable for the harm caused to the complainant unless it provides a compelling alternative explanation. In the present case, the State party provided no such explanation and thus the Committee must conclude that the investigating officers are responsible for the complainant’s injuries.220 It is thus made clear by the Committee that a State party is responsible for the acts committed by its public officials, such as police, for any acts of ill-​treatment that happen within its premises and that such acts amount to torture, as soon as the other elements of Article 1 are fulfilled as well. 3.1.6.2 Meaning of ‘other person acting in an official capacity’ 125  The term ‘other person acting in an official capacity’ is clearly broader than just State officials. It was inserted on the proposal of Austria in order to meet the concerns of the Federal Republic of Germany that certain non-​State actors whose authority is comparable to governmental authority should also be held accountable.221 These de facto authorities seem to be similar to those ‘political organizations’ which, according to Article 7(2)(i) ICC Statute, can be held accountable for the crime of enforced disappearance before the ICC. One might think of rebel, guerrilla, or insurgent groups who exercise de facto authority in certain regions or of warring factions in so-​called ‘failing States’. 126  In the case of Elmi v Australia, the Committee had to decide whether the forced return of a Somali national belonging to the Shikal clan to Somalia, where he was at a   CAT, ‘Concluding Observations: Ethiopia’ (2011) UN Doc CAT/​C/​ETH/​CO/​1, para 9.   CAT/​C/​CPV/​CO/​1 (n 183) para 10; CAT, ‘Concluding Observations: Macao’ (2016) UN Doc CAT/​ C/​CHN-​MAC/​CO/​5, para  14. 216 217 218   EN v Burundi, No 578/​2013 (n 106) para 7.3.  ibid.  ibid. 219   Oleg Evloev v Kazakhstan, No 441/​2010, UN Doc CAT/​C/​51/​D/​441/​2010, 5 November 2013, para 9.2. 220 221   ibid, para 9.2.   See above 2.2. See also Wendland (n 178) 29. 214 215 Zach