‘Torture’ in Criminal Law: Legal Norms and Standards of Judicial Review

Intentional excessive suffering which an individual experiences against their will and cannot independently stop…

(a definition of ‘torture’)

The epigraph above does not sound like technical legal language. Some might find it slightly ‘literary’ while others will not immediately understand it to mean torture or cruel and inhuman treatment. This is why it is so important to understand exactly what Russian human rights defenders mean when they refer to a ‘torture colony’ or conditions of detention ‘amounting to torture’.

There are not so many principles in international human rights law which are absolute and therefore cannot and should not be disputed. One of the few principles rarely or never questioned is the prohibition of torture and cruel and inhuman treatment or punishment, in particular by agents of the State. This maxim of law is established in leading paragraphs of all international human rights covenants and conventions and underlies a large part of the European Court of Human Rights (ECtHR, Court) case-law concerning violations of Art. 3 of the European Convention for the Protection of Human Rights (ECHR) and of the work of specialised committees against torture at the global and European levels.

This may be the reason why human rights defenders and lawyers focus so much on investigating any violations of this absolute prohibition and on preventing the impunity of perpetrators of this ‘modern barbarism,’ committed either on behalf of the State or with its quasi-silent acquiescence. Perhaps there is only one pervasive situation in which the absolute ban on torture and ill-treatment has been questioned—the fight against the new world evil: terrorism (typical examples include Guantanamo and Abu Ghraib prisons), but even in this case, doubts as to possible legitimacy of torture only arise in regard of individuals clearly dangerous in terms of perpetrating massive crimes against humanity.

Going back to legal regulations designed to counteract torture, there is one aspect involved which few people are likely to dispute—at least, it was not challenged by the participants of an expert roundtable meeting on the issue held on 1 September 2017 in Moscow. I am referring to the preliminary conclusion from the meeting, formulated in the following way by Professor Gennady Esakov:

“The problem of torture in Russia is not so much a legal matter as it is a social one. We have an effective instrument in place for prosecuting torture (which can be slightly adjusted if needed), but there is no desire whatsoever to investigate and prosecute torture whether it is perpetrated ‘on behalf of the State’ or by private individuals. This problem is social, administrative and psychological in nature. Its legal aspect is limited.”

It would seem that by accepting this statement, we must agree that a further discussion of the legal aspects of the issue does not make much sense. Also, according to an introduction to the subject made by Kristaps Tamužs, lawyer with the Constitutional Court of Latvia who has extensively worked in Strasbourg, the European Court of Human Rights has adopted an approach to cases under Article 3 of the ECHR which is somewhat different from the treatment of torture in national jurisdictions. Thus, according to the Court, “preventive mechanisms are more important than compensatory, as the former, first, reduce the likelihood of torture and second, serve the entire society and not just the individual victim of torture.”

Apparently, here we could end the introductory part, adding perhaps that practice, once again, seems more important than theory—except that there are numerous problems and uncertainties in the way torture is defined and addressed under different jurisdictions.

Let’s start with its definition in international human rights law. By referring to the core definition of ‘torture’ and related concepts, i.e. different subtypes of cruel, inhuman or degrading treatment or punishment (hereinafter this extended concept of torture is implied, unless otherwise stated), one can see that the way torture is interpreted by UN treaties and mechanisms is somewhat different from the legal position and practice of the ECtHR and certain Council of Europe States Parties.

So what exactly follows from the UN Convention Against Torture and other international legal standards, according, e.g., to the recommendations concerning their application provided in the authoritative resource, Combating Torture: A Manual for Judges and Prosecutors, published in the UK? The book highlights several aspects characterising torture, such as purpose, intent, perpetrator and, most importantly, what constitutes this prohibited form of violence against a person. The essential elements of torture include: (1) severe mental or physical pain or suffering; (2) intentionally inflicted on a person for such purposes as obtaining information or a confession; (3) by or at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity.

Note an essential reservation made in the cited Manual, published under the auspices of the Foreign and Commonwealth Office and written by lawyers of the University of Essex Human Rights Centre, namely that according to the authors, the concept of torture does not include pain or suffering “arising only from, inherent in or incidental to lawful sanctions” (!). It would seems that the cited clarifications and explanations are fairly specific and can assist law enforcers, judges and prosecutors in qualifying acts of violence committed by public officials. But is this approach really comprehensive?

This is what the legal expert mentioned above said regarding European law: “The definition in Article 3 of the ECHR is undoubtedly the broadest compared to relevant provisions of Article 1 of the UN Convention Against Torture and its interpretations mentioned above, and to the wording in the footnote to art. 117 of the Russian Criminal Code (see details below). Thus, Article 3 of the ECHR does not specify that torture can only be used by persons acting in an official capacity, nor does it require that the use of torture should have any purpose (such as forcing testimony). Moreover, the Court’s case law under Article 3 focuses mainly on the victim and the extent of suffering inflicted on them. Indeed, the main advantage of the absence of a precise definition of torture in the ECHR, according to Kristaps Tamužs, is that it enables a dynamic interpretation of the concept of ‘torture’ consistent with the Court’s evolving case law as well as changes in how torture is understood and defined under other international and domestic jurisdictions.

It would be appropriate to note that the moderator of the aforementioned roundtable in Moscow (and the author of this text) focused its agenda on the semantic differences revealed above in the discussion of the legal approaches to torture. In particular, one question proposed for discussion was whether law and enforcement practice should distinguish the following circumstances in which abuse occurs:

• improvised/reactive deliberate and pre-planned violence;
• violence committed with the intent of forcing the victim to perform acts of official (legal) nature violence to force unlawful acts vs. violence committed without a specific purpose;
• violence by a public official provoked by the victim’s non-violent behaviour (e.g. insults, threats to someone, real danger of causing harm) preventive violence without any ‘external’ reason;
• violence within the limits of necessary self-defence in response to the victim’s violent actsviolence clearly exceeding the limits of self-defence or so-called pretended self-defence.

Apparently, there is a single answer to these questions: all of the above characteristics of torture are important for investigating incidents of unacceptable and illegitimate violence, but regardless of specific circumstances, the extent of suffering inflicted is at least as important as assigning the acts to certain categories, such as:

• torture as qualified ill-treatment with or without intent;
• cruel and/or inhuman treatment or punishment;
• causing harm to physical or mental health;
• disproportionate/excessive violence without serious harm to health;
• deliberate failure in official duties or refusal to provide assistance to a victim in a situation dangerous to their life or health.

As a general rule, however, any such actions (or inaction) of a public official should be qualified as torture in the broadest sense and treated as constituting a separate offense. None of the round table participants objected to the idea that torture should be treated in domestic legislations as a separate criminal offence specifically related to misconduct in public office. Based on this assumption, the participants discussed different possible approaches to defining torture in domestic law and to drafting the relevant legal norms (articles) addressing this crime. At least two options were described as existing today in the Criminal Codes (CC) of Russia and Latvia.

The Russian CC has two significant features in this regard.

First, ‘torture’ is part of a broader crime of ‘inflicting physical and mental suffering’ (istyazanye) (Article 117) defined in a footnote to the CC article with reference to the key characteristics of this criminal offence in the spirit of recommendations to the UN Convention.

Second, more importantly, this criminal offence is separate from misconduct in public office and is not explicitly mentioned among the qualifying characteristics of exceeding official powers (Article 286 of the Russian CC), which is included in the chapter on crimes against the State (not crimes against the person!). Although the text of the article refers to acts causing significant violations of individual rights and legitimate interests involving the use or threat of violence or leading to grave consequences (Article 286, Part 3 (a) and (c)), torture is not explicitly mentioned. Moreover, it allows the authorities investigating such incidents to examine abuse of official powers without direct reference to torture, as official conduct regulations do not explicitly prohibit either unlawful violence in general or torture and inhuman treatment in particular.

This suggests that Russia’s criminal law does not prohibit torture per se but only provides for punishment of public officials for illegitimate use of violence while performing their official duties and for any adverse consequences thereof. In other words, this provision is about punishment for ‘excess of the performer’ rather than for breaching the absolute prohibition of torture under any circumstances!

In contrast, Latvia’s post-Soviet criminal law treats torture in an entirely different manner. Apparently, for a number of different reasons, legal and otherwise, the country’s legislation has evolved under a significant influence of the European Court’s case law. As a result, not only does it provide for a dedicated judicial ‘subsystem’ to handle citizens’ complaints against acts of the State and its officials (administrative proceedings), but ensures a thorough and impartial investigation of all torture cases brought against public officials in this jurisdiction. Equally noteworthy is the way Latvia’s effective Criminal Code takes into account the extent of harm and suffering caused to torture victims, as well as the purpose of torture¹Latvia’s Criminal Code

Section 125(2)(4). Intentional Serious Bodily Injury

For a person who commits intentional infliction of such bodily injury as is dangerous to life or has been the cause of loss of vision, hearing or any other organs or functions of organs, or mental or other health disorder, if it is related to a general ongoing loss of ability to work to the extent of not less than one third, or has resulted in the termination of pregnancy, or has been manifested in irreparable facial disfigurement (serious bodily injury), if they have been in the nature of torment or torture, the applicable punishment is deprivation of liberty for a period of two and up to ten years, with or without probationary supervision for a period up to three years.

Section 126(2)(2). Intentional Moderate Bodily Injury

For a person who commits intentional infliction of such bodily injury as is not dangerous to life and has not resulted in the consequences provided for in Section 125 of this Law but has resulted in continued health disorder or general ongoing loss of ability to work to the extent of less than one third (moderate bodily injury), if they have been in the nature of torment or torture, the applicable punishment is the deprivation of liberty for a period of up to five years or temporary deprivation of liberty, or community service, or a fine, with or without probationary supervision for a period of up to three years.

Section 130(3)(2). Intentional Slight Bodily Injury

For a person who commits intentional infliction of slight bodily injury, if they have been in the nature of torment or torture, the applicable punishment is the deprivation of liberty for a period of up to three years or temporary deprivation of liberty, or community service, or a fine.

Section 130.1 Torture

For a person who commits torture, if such acts have not had the consequences provided for in Section 125, 126 or 130 of this Law, the applicable punishment is the deprivation of liberty for a period of up to one year or temporary deprivation of liberty, or community service, or a fine.

Section 272.1 (3). Compelling of False Explanations, Opinions or Translations at a Parliamentary Investigation Commission

For a person who commits illegal influencing for the purpose of achieving that a person shall give a false explanation, opinion or translation or refuses to give an explanation, opinion or translation to a parliamentary investigation commission, if they are related to torture, the applicable punishment is deprivation of liberty for a period up to eight years.

Section 294(2). Compelling of Testimony

For the compelling of testimony at an interrogation, if such is related to torture and if it has been committed by an official who performs pre-trial criminal proceedings, the applicable punishment is the deprivation of liberty for a period of up to ten years.

Section 301(3). Compelling the Giving of False Testimony, Explanations, Opinions and Translations

For a person who illegally influences, if such acts are related to torture, a witness, victim, person against whom the criminal proceedings have been commenced, detained, suspect, accused, applicant, expert or translator, for the purpose of compelling him or her to give false testimony or to certify on oath a false explanation to a court in an administrative matter, or a false opinion, or to provide a false translation, or to refrain from giving testimony or an opinion, or providing a translation, the applicable punishment is the deprivation of liberty for a period of up to ten years.

Section 317(3). Exceeding Official Authority

For a person who, being a public official, commits intentional acts which manifestly exceed the limits of rights and authority granted to the public official by law or according to his or her assigned duties, if substantial harm has been caused thereby to State authority, administrative order or interests protected by law of a person, and if such acts are related to torture, the applicable punishment is the deprivation of liberty for a period of up to ten years, with the deprivation of the right to take up a specific office for a period of up to five years.

.

Interestingly, some of the Latvian legal provisions are seemingly similar to the Russian Criminal Code’s reference to acts causing intentional bodily harm and having “the nature of ill-treatment or torture.” Another feature of the Latvian system is that while defining different types of ill-treatment as separate crimes, including those not causing serious physical harm (and involving lighter punishment), Latvian legislation does not provide a definition of ‘torture’ (just like European human rights law, as discussed above).

At the same time, the Latvian Criminal Code contains three articles addressing various types of unlawful pressure combined with torture in a number of situations, e.g. in regard to witnesses, victims and suspects. In addition to this, there is a separate crime of exceeding official powers, of which one component is the use of torture by a public official. Punishment for the said crimes is substantially tougher than for ‘ordinary’ torture and may be up to ten years of prison.

Thus, Latvian law offers a wide range of options for use by law enforcers to make sure that no type of torture-like abuse goes unpunished, with progressively tougher sanctions if the abuser is a public official rather than a private person. Notably, in the case of a public official, an essential test for finding them guilty is the use of torture per se irrespective of the extent of injury to the victim.

Does this mean that the right choice of legal regulation is enough to deal effectively with the problem of torture by minimising if not eliminating it from the life of today’s societies? This would be a very naive and ill-founded conclusion. But finding an appropriate legal solution is essential for placing torture outside the mainstream day-to-day practices of law enforcement agencies. Still, many unresolved issues remain.

Among them is what the above-mentioned expert defined as the ‘horizontal’ use of torture by public officials who know or are supposed to know about the imminent threat of torture by third parties but fail to warn them against it. Such situations are common in circumstances where victims are placed in custody of the State, such as prisons, psychiatric institutions, and others. What criteria should be used in these cases to determine whether or not the officials in charge have responded adequately, and under what circumstances may such officials be exempt from criminal prosecution or at least face lighter punishments?  Perhaps the same is true in an even broader range of cases involving the use of violence without danger to life or health or without intent to cause harm to the victim. While we have seen this aspect addressed in European law and in domestic legislation of EU member states (e.g. Latvia), laws and especially practices of other countries do not normally warrant criminal prosecution for causing this type of suffering in this type of situation, particularly against public officials in countries such as Russia which do not make their agents legally liable for acts perceived as ‘harmless’.

There are some other pertinent circumstances to be considered.

For example, sometimes it is not so much the treatment itself that is cruel, inhuman or degrading but the fact that a punishment, while formally legal, is not appropriate given the circumstances or the person involved. Another example is detention in clearly inadequate conditions amounting to torture, if only by virtue of its duration or the degree of isolation from other people. This brings us to the concept of ‘psychological torture’, which is increasingly explored by lawyers and related professions. (Recently, a monograph on the topic was published in Russia, but so far the topic has not been adequately defined or addressed in criminal law).

In another type of situation, it can be difficult to draw a line between different forms of ill-treatment: while each of them separately may not lead to ‘torture-like’ suffering, these forms of treatment or detention conditions can amount to torture taken in sum.

Yet another issue arises in circumstances where the victim feels humiliated but their suffering does not reach a level where it can be defined as ‘amounting to torture’, let alone causing physical pain or mental disturbances. Such situations do not easily lend themselves to legal differentiation and thus to regulation. Indeed, it is not accidental that Latvian criminal law has a separate provision for acts causing suffering but different from torture. This implies that certain intentional acts may cause pain and suffering which are less severe than torture but still merit impartial investigation and possible punishment.

Commentary to judicial and investigative practices in such cases usually highlights the importance of examining the purpose behind the public official’s actions—whether there was none or whether the purpose was to place the victim in conditions known to be worse than their current status, which can be qualified as ill-treatment. Another important aspect is intent: whether it was the official’s intent to cause pain, suffering or humiliation, or whether certain external circumstances, including the victim’s personal characteristics unknown to the law enforcement agent, produced the adverse effect.

As we can see, our discussion of the issue leaves more questions than answers. Perhaps one of the purposes of the roundtable was to initiate further debate on these topics, preferably with reference to their treatment under various European jurisdictions and to relevant social practices, which could be reviewed and shared here in Legal Dialogue.[:]

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