OSCE/ODIHR Opinion on Article 235 of the Criminal Code of the Republic of Uzbekistan written criminal law to which a sufficiently certain sanction was attached.14 Clear legislative provisions will also avoid divergence in interpretation by judges, investigators and law enforcement personnel. 19. According to international standards, there are four elements that need to be taken into account for qualifying an act as torture, namely (i) the nature of the act, (ii) the intention of the perpetrator, (iii) the purpose of the act and (iv) the involvement of public officials or other persons acting in an official capacity. It is from the perspective of these four constitutive elements of the criminal offense that the subsequent review and analysis of Article 235 of the Criminal Code is conducted. It must be highlighted that an analysis of the definition of torture cannot ignore the underlying principle that acts of torture attack the inherent dignity of the human person. It is for this very reason that such acts cannot be addressed via general criminal law provisions (such as assault or abuse of power),15 and that a special legal regime shall apply to the criminal offense of torture and other cruel, inhuman or degrading treatment or punishment (see pars 30-33 infra regarding the absolute and non-derogable character of the prohibition). 2.1. Nature of the Act 20. Article 235 of the Criminal Code covers acts amounting to “unlawful mental or physical pressure […] by means of threatening, striking, beating, tormenting, causing of suffering or other unlawful acts”. It is assumed that the word “unlawful” has been introduced to distinguish it from the “pain or suffering arising only from, inherent in or incidental to lawful sanctions” referred to in Article 1 (1) of the UNCAT which is excluded from the scope of the prohibition. Such wording is somewhat unclear and may be interpreted as leaving open the possibility of “legal” forms of coercion. If the purpose of the drafter was to reflect the exclusion stated in Article 1 of the UNCAT, it would be advisable to remove the word “unlawful” and expressly clarify that the scope of Article 235 does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.16 It should be pointed out in that respect that the lawfulness of any sanction shall be determined by reference to both national and international law and standards.17 21. It is important to bear in mind that the term “act” which is mentioned in Article 1 of the UNCAT should not be given a narrow interpretation and that the provision has been construed as including physical and mental pains and sufferings as a result of omission (meaning failure to act).18 From the wording of Article 235 of the Criminal Code, it is not clear whether omission could fall within the scope of the offense and this will thus 14 15 16 17 18 For examples of key issues in drafting anti-torture legislation, see the Report of the Expert Meeting organized by APT on Key Issues in Drafting Anti-Torture Legislation: Experience, Advice and Good Practices (2013) available at http://www.apt.ch/content/files_res/report-expert-meeting-on-anti-torture-legislation-en.pdf (hereinafter “2013 APT Report on Key Issues in Drafting Anti-Torture Legislation”). See page 3 of the Remarks by Matt Pollard on “Torture as a Specific Criminal Offense in Domestic Laws” (2009) http://www.wcl.american.edu/hrbrief/16/4pollard.pdf. See also op. cit. footnote 12, par 11 (General Comment No. 2 of the UNCAT Committee). See also par 7 of the Concluding Observations of the UNCAT Committee on Poland, CAT/C/POL/CO/5-6, 23 December 2013, available at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CAT%2fC%2fPOL%2fCO%2f56&Lang=en. See for instance the definition of “torture” stated in the Act Containing Rules Concerning Serious Violations of International Humanitarian Law of 19 June 2003 (International Crimes Act) of the Netherlands which is compliant with Article 1 of the UNCAT, available at http://www.apt.ch/content/countries/netherlands.pdf (pages 4-7). In that respect, international standards include the UN Standard Minimum Rules for the Treatment of Prisoners, available at http://www.ohchr.org/EN/ProfessionalInterest/Pages/TreatmentOfPrisoners.aspx. Op. cit. footnote 12, par 15 (General Comment No. 2 of the UNCAT Committee). 7