A/HRC/13/39/Add.5
torture. It is also important to underline that the intentional infliction of severe pain or
suffering has to be committed for a specific purpose referred to in the Convention, such as
the extraction of a confession or information. For example, severe pain, inflicted during a
medical intervention, with the purpose of treating a patient, does not satisfy the element of
intent.
(d)
Purpose
35.
Article 1 explicitly names several purposes for which torture can be inflicted:
extraction of a confession; obtaining information from a victim or a third person;
punishment, intimidation and coercion; and discrimination. However, there is a general
acceptance that these stated purposes are only of an indicative nature and not exhaustive. At
the same time, only purposes which have “something in common with the purposes
expressly listed” are sufficient12. Noteworthy of the examples included in article 1 is that
most of these purposes are related to “the interests or policies of the State and its organs.”13
They are linked to the work of law enforcement authorities and similar State agents and
implicitly refer to situations in which the victim finds itself “at least under the factual power
or control of the person inflicting the pain or suffering.”14
36.
Torture constitutes a particularly aggravated form of ill-treatment. It differs from
cruel, inhuman or degrading treatment (CIDT), not necessarily by the intensity of the pain
or suffering inflicted, but by the specific purpose of the act. This line of reasoning is in line
with the earlier position of the European Commission on Human Rights since the Greek
Case.15
(e)
Powerlessness of the victim
37.
Torture, as a most serious violation of the human right to personal integrity and
dignity, is predominantly inflicted on persons deprived of their liberty. Persons held in
captivity, be it in police custody, remand facility or prison, or deprived of their liberty in
any other context, find themselves in a situation of complete dependency and are therefore
particularly vulnerable to any abuse. It is against this background that the intentional
infliction of severe pain or suffering for a specific purpose requires a particularly strong
moral stigma and legal prohibition.
38.
At the same time, this does not mean that the Convention outlaws the infliction of
severe pain or suffering. A police officer who frees a hostage from its hostage-taker or who
defends himself against a violent attack is entitled to inflict severe pain or suffering, with
the pivotal qualification that the inflicted pain or suffering be proportional to the lawful
goal of policing and that no less intrusive measure is available. The proportionality test,
however, can never be applied when a person is powerless and at the mercy of its captors.
The powerlessness of the victim was an essential criterion when the distinction between
torture and cruel, inhuman and degrading treatment was introduced into the Convention.
12
13
14
15
14
Burgers, Herman J. and Danelius, Hans. United Nations Convention Against Torture: A Handbook on
the Convention Against Torture and Other, Cruel, Inhuman, or Degrading Treatment or Punishment.
1988, 188.
Ibid. 199. See also Ingelse, Chris. The Role of the UN Committee Against Torture in the Development
of the UN Convention Against Torture. 2001, 211.
Burgers and Danelius, 120.
ECHR, Greek Case, 12 YB 1, 1969.
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