Prohibition of torture and inhuman or degrading treatment or punishment

What is torture?

Torture is a broad term, which has no universally accepted definition. In simple terms, torture is the act of inflicting severe pain or suffering, either physical or psychological. Torture is an intentional act – it is usually used to obtain information or a confession from a detained person, to punish, coerce, humiliate and/or intimidate them.  

What is inhuman or degrading treatment (IDT) or punishment? 

The difference between torture and IDT lies in the severity of the suffering inflicted. Torture involves the highest degree of intensity and is inflicted deliberately. Inhuman treatment or punishment involves less suffering compared to torture: it must reach a minimum level of severity and cause either actual bodily harm or intense mental suffering. It does not have to be deliberate. Degrading treatment humiliates a person, disrespects a person’s dignity or causes fear. It does not have to be deliberate, and often does not result in bodily injury. 

There is no exhaustive list of acts that qualify as torture or IDT: it always depends on the circumstances. The assessment is relative and includes factors such as the duration of the treatment, the age, sex and state of health of the victim, the conditions and effects of the treatment, etc. 

note The prohibition also covers cases of deportation or extradition of a person where there is a real risk that the person will face torture or IDT in their home country. 

Can torture or IDT be justified? 

Torture and IDT cannot be justified – this prohibition is absolute, without exception. Neither the public interest, nor the rights of others, nor the actions of the victim, however dangerous or criminal, can justify an interference with this right.

Who protects this right?

The State is the main guarantor of human rights. Its obligations are twofold: negative (obligations “not to do” something) and positive (obligations “to do” something). 

The negative obligation requires the State to refrain from all forms of ill-treatment, i.e. not to torture and not to treat individuals in an inhumane and/or degrading manner. The positive obligations require the State to protect individuals from ill-treatment (by enacting relevant laws, providing necessary training, etc.) and to effectively investigate claims regarding ill-treatment. 

International recognition of this right

The norms prohibiting torture and IDT were formulated after the end of the Second World War when the international community decided to set a common standard for protecting fundamental rights. In 1948, the Universal Declaration of Human Rights was adopted, which reads as follows in Article 5:

“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”.

The prohibition is also found in international and regional human rights conventions. In 1984, the United Nations adopted a separate legal document devoted entirely to the prohibition of torture and IDT – the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Sources

Last updated 11/07/2024