Definition and meaning of torture in criminal law

Abstract

Torture crimes fall within the category of serious offences, demanding an exceptionally high standard of protection. Its legal significance is profound, especially in safeguarding fundamental human rights and dignity. Human dignity is an absolutely protected, inviolable legal good protected by international legislation and the Constitution. Since the Second World War, international organizations have placed significant emphasis on establishing norms to regulate this egregious crime, given the severity and prevalence of the crime of torture, inhuman and degrading treatment is relatively high.

Studying the definition, meaning, and essence of the crime of torture has become essential for crime prevention and public awareness. It plays a decisive role in protecting legal goods. By delving into international legislation and historical contexts, we can better analyze the significance of torture in criminal law and identify crucial issues for its qualification.

This article aims to provide a comprehensive examination of the international convention’s interpretation of the crime of torture, along with the constitutional and criminal law definitions within Georgia. It will analyze the practices of the European Court of Human Rights concerning Georgian and international norms while also highlighting any gaps and issues within the discourse. Through practical analysis, the article will objectively determine and present the relevance of the research topic.

Keywords: crime of torture, definition of torture, meaning of torture

Introduction

Protection of human rights is one of the most important and priority issues for the modern world. Against international development background, great attention is paid to basic and fundamental human values. The first among them is the inviolable human right and, at the same time, the absolute legal good - the prohibition of torture. All people have the right not to be victims of violence, torture, cruel, inhumane treatment or punishment; however, at the same time, it is essential that the norm prohibiting torture is meticulously complete and includes all appropriate perpetrators and all possible aggravating circumstances. 

Prohibition of torture and protection of dignity is a problematic issue in criminal law, especially the topic is relevant in the background of technological development, as it creates a greater danger of encroaching on personal goods. Also, these actions often precede more serious crimes. We are encountering new forms of torture, and new vulnerable groups are emerging. Therefore, it is necessary to analyze the existing norm in a new way and bring the content into line with the goal.

The current edition of the definition of torture is problematic and topical. It is necessary to make the disposition of the article more specific and to provide clearer explanations in judicial practice. Although the term “torture” is familiar and quite relevant to the public, its legal definition has a legal meaning separated from the terminological point of view and differs from the understanding that is established worldwide.

The definition of the article and the determination of its meaning in criminal law is crucial from the point of view of protecting torture as a concept or a legal good. To fully understand the definition, it is necessary to study and present international legislation and historical aspects to analyze its absolute character, essence, and importance in the legal system.

Based on the above, research has both theoretical and practical significance.

1. Definition of torture under international law

When studying the definition of torture, it is necessary to determine its international legal significance because the international community pays special attention to the prohibition of torture and inhumane treatment as one of the most important mechanisms for the protection of absolute rights. This is evidenced by international legislation, a number of conventions, declarations, and pacts that indicate the supreme legal protection of torture and strengthen its role in the protection of fundamental human rights and freedoms.

Torture, international conventions and pacts led to the establishment of a high standard of protection, the most brutal and widespread crimes during World War II, such as torture and cruel and humiliating treatment of people. Accordingly, creating international acts that would declare war on the most serious crime became necessary. On December 10, 1948,[1] the Universal Declaration of Human Rights was adopted. Later, on November 4, 1950, the European Convention for the Protection of Human Rights and Fundamental Freedoms was adopted by the Council of Europe in Rome, which entered into force on September 3, 1953. Also the 1966 Pacts[2] and the 1984 Convention against Torture[3] in its 1993 Optional Two Protocols.[4]

The United Nations has been trying for many years to develop universal standards to protect everyone from torture or cruel, inhuman, degrading treatment. Conventions, declarations or resolutions adopted by the member states of the United Nations clearly state that the prohibition of torture applies without any exception and other obligations are established to ensure[5] protection against this type of violation.  Accordingly, the Convention on Torture adopted by the United Nations, with its burden, content, definition and definition, is the most important law for member states.

The internationally recognized definition of torture contained in the first article of the United Nations Convention is noteworthy. In particular, term “torture” means any act by which a person is intentionally inflicted with severe pain or suffering, physical and spiritual, for purposes such as obtaining information or recognition from him or a third party, punishing him for an act he or a third party has committed, or which is suspected of committing, or intimidating or coercing him or a third party, or for any reason based on discrimination of any nature, When such pain or suffering is caused by a state official, or another person acting in an official position, either at his instigation, or with his permission, or with his tacit consent. It does not include pain or suffering that arises only as a result of legal sanctions, is essentially inseparable from them, or is a consequence of ”.[6]  This definition of the Convention entirely and comprehensively lists the persons who may be the perpetrators of the crime, what is the specific purpose and how and what kind of suffering constitutes torture.

Importantly, Article 4 of the UN Convention “Against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment” provides an imperative requirement that each State Party shall ensure that the act of torture is considered a crime under the criminal law of that particular State,[7] which gives member states a positive obligation to protect all citizens of their country from torture and inhumane treatment, to fulfil their obligations and to prevent all actions aimed at carrying out torture, regardless of the situation, circumstances and situation in the state.

Among the international acts regarding the prohibition of torture, the Universal Declaration of Human Rights and the practice of the European Court of Human Rights occupy an essential place. The European Court of Human Rights has repeatedly noted that Article 3 represents one of the most fundamental values of a democratic society. According to Article 3, “No one may be subjected to torture or inhuman or degrading treatment or punishment”. The definition of the mentioned article of the Convention is not so extensive and, at first glance, exhaustive, unlike the European Court of Human Rights, which in each decision clearly outlines the theoretical definitions related to the definition of Article 3 based on practice, presents the essence and meaning of Article 3, the in-depth explanations established by the court on a number of issues raised from practice It represents and creates a large base of precedents, which is necessary for the correct qualification of Article 3 and its definition. The European Court additionally demands that the punishment of torture be carried out based on relevant articles and not within the framework of inadequate, illusory and fictitious justice.[8]

2. Constitutional essence and meaning of torture

The international legal framework regarding the prohibition of torture is directly proportional to the definition of torture established by the legislation of Georgia.  Reflecting the prohibition of torture at the constitutional level is an important element in ensuring that such a prohibited action does not take place within the jurisdiction of a member state.[9]  The constitutional definition of torture is the basis of the definition of the article of torture established in the criminal law, within the framework of which it should be interpreted and, as a hierarchically supreme normative act, be consistent and not contradict.

Article 9 of the Georgian Constitution states that “human dignity is inviolable, and it is protected by the state”.[10] Torture, inhuman or degrading treatment, and use of inhuman or degrading punishment are not allowed. The presented constitutional norm is imperative, which makes dignity an absolute right. The mentioned article preserves the principle of inviolability of human dignity, which is the source of rights and freedoms. It is an absolute right not to be a victim of violence, torture, or other cruel, inhuman or degrading treatment or punishment, which is established by international legislation and the constitution.

The first part of Article 9 of the Constitution of Georgia talks only about the inviolability of dignity, but the 2^nd part specifies the concept of dignity and distinguishes different forms of crimes of legal good protected by one absolute right. Actions prohibited by Article 9 of the Constitution and Article 3 of the European Convention can be divided into two parts: “torture” and “inhuman and degrading treatment or punishment”. Different conventions and pacts on human rights refer to the distinguishing features of these two actions, and there are also a number of decisions of the European Court of Human Rights, the main distinguishing feature of which is “quality”. It is worth noting in itself that all torture is, at the same time, inhumane and humiliating treatment, but the latter does not always reach the degree of torture. In each specific case, the degree of suffering a person has experienced is considered.[11] For human treatment to be considered a violation of the Constitution of Georgia and Article 3 of the European Convention, it is necessary to have a minimum degree of severity of “treatment”.[12] The content, nature, form, duration, physical and spiritual harm of the treatment are taken into account, and in some cases, the gender, age, and health of the victim are also taken into account.[13]

When we touch on the definition and importance of Article 9 of the Constitution of Georgia, it is necessary to mention the state’s obligations in relation to this article. The prohibition of torture and inhuman and degrading treatment and punishment will directly affect the state. This prohibition appears to us as a negative obligation. However, the state also has a positive obligation to protect people in its jurisdiction from such treatment by private individuals.[14]

3. The absolute nature of the prohibition of torture

Among human rights, absolute rights are distinguished - rights that the state cannot limit under any circumstances. Absolute right is related to human dignity.[15]

Some human rights may be limited in specific circumstances (for example, to protect public order) if the restriction is defined by law, serves the public interest, is necessary to protect the rights of other persons or society in general, and is proportional.[16] The mentioned circumstances are specifically and exhaustively defined in many existing pacts and conventions on human rights. However, as the European Court of Human Rights explained in its decision in the Tyrer v. United Kingdom,[17] the prohibition established by Article 3 of the “Convention is absolute: the possibility of an exception is not provided, and deviation from the Convention is not allowed under the second part of Article 15 of the Convention either”.[18]

In this regard, the decision of the European Court of Human Rights is important: Selmun v. France (Grand Chamber), where he once again made a clear explanation and specified the most difficult situations or the state of the country, during which it is not allowed to deviate from the 3^rd floor of the European Convention on Human Rights and limit it as an exception. In particular, the decision mentions that “even in the most challenging situations, such as the fight against terrorism and organized crime, the Convention prohibits torture or inhumane or degrading treatment or punishment. Unlike the essential provisions of the Convention and the N1 and N4 Additional Protocols, Article 3 does not provide for any exception or right to deviate from what is permitted by Article 15, Clause 2, even during a public emergency that threatens the life of the nation“.[19]

4. Definition of torture in the Criminal Code of Georgia

Article 144¹ of the Criminal Code of Georgia was formed due to international and constitutional definitions of torture and historical foundations. Taking into account that the crime of torture is located at the twenty-third door of the Criminal Code of Georgia, namely in the category of crimes against human rights and freedoms, it once again highlights its importance and complete compliance with the Constitution. It presents as a set of high-risk, socially dangerous actions, a crime against the absolute right of human rights and freedoms, distinguished by the highest protection from the legal point of view.

When considering the legal definition of torture - in Georgia, it is important that, despite many similarities, there is still a difference from the meaning of the mentioned article of international conventions. In particular, in the first part of Article 144¹ of the Crime Code of Georgia, it is established that “torture, that is, the creation of such conditions for a person or a third party or such treatment, which by its nature, intensity or duration causes severe physical pain or mental or moral suffering and whose purpose is to receive information, evidence or recognition, intimidation or coercion of a person or punishment of a person or punishment of a person for an act committed or allegedly committed by him or a third party”.[20] Although the mentioned article of the Criminal Code broadly defines the definition of torture, the UN Convention specifies the perpetrator of the crime - namely: “is a state official or another person acting in an official position”,[21] and the first part of Article 144¹ of the Criminal Code refers to the subject of the crime, generally refers to and does not make a specific reservation. Which may create a legal qualification problem. In practice, there are frequent cases when such actions are carried out by a private person, which are characteristic of the definition of torture and lead to its qualification under Article 144¹ of the Criminal Code of Georgia. But in the international conventional sense, such a case cannot be considered torture,[22] which creates certain difficulties at the international level.

To study the definition of torture in-depth, it is necessary to determine the signs of crime and its characteristics. The composition of the action, the objective and subjective side, and the degree or importance of protection of the legal good create the definition of a criminal act. 

The objective side of the composition of the action is the external act of the human will, which is expressed in the legal signs of the process and result of the impact on the object of criminal protection.[23]  The object of the crime is a legal good that has been or may be harmed due to the crime.[24]

The legal good of Article 144¹ of the Criminal Code of Georgia is human dignity, the absolute nature of which was discussed in detail above. The object of criminal protection is also human health, both from a physical and mental point of view, as well as a person’s normal (balanced) mental state. An additional object of the crime is the public relationship related to the protection of a person’s personal, family or other secrets; an additional object of torture is the equality of people according to race, nationality or other characteristics.[25]

Torture is a form of violence that can involve different types of violence. The result of these actions can be physical suffering, mental or moral, or all components together. The purpose of torture is specifically listed in the Criminal Code of Georgia. It includes receiving information, evidence or recognition, intimidating or forcing a person, or punishing a person for an act committed or allegedly committed by him or a third party, which leads to a narrow understanding of torture, which implies physical violence and suffering. inflicting in the interrogation process.

As a result of the legislation of Georgia, we can single out the main characteristics of torture, which are described in its criminal definition. For the crime of torture, it is necessary to have an intention; this crime cannot be committed without premeditation, but the methods of cruelty can be spontaneous. Also, torture is mostly characterized by systematicity in a certain period, but time is not of decisive importance for the mentioned crime. The main characteristic of torture is the fact - human suffering, which can end with various consequences for all people, including fatal ones, but it is impossible for a person not to have injuries caused by physical suffering after torture; psychological suffering does not cause physical and biological changes, and moral trauma causes a person to lose his dignity—spiritual traumas as a result of feeling inferiority complex.[26] Taking into account that every person perceives pain and suffering individually, and this is a subject of assessment, as a result of determining the method of crime and the purpose of action, the degree of cruelty, cumulative study, and the correct qualification of torture is not a problem. Especially in the conditions when, in the definition of Article 144¹ of the Criminal Code of Georgia, the objective signs of the composition of the action are widely formed. It should be noted that the crime of torture can be committed both by action and by inaction, both against one specific person and against a close relative of this person. According to the norm, the action is manifested by the creation or treatment of such conditions for the victim, which causes physical, mental or moral suffering by its intensity.[27]

To study the disposition and importance of torture, it is necessary not only to be guided by the Criminal Code of Georgia but also to solve the problem in a number of issues; it is important to share the practice of the European Court of Human Rights, the diverse base of decisions of which provides an opportunity to understand each sign of crime better, to easily distinguish between the crime of torture and inhumane treatment, to reduce as much as possible Controversial issues arising from practice and others.

Conclusion

To thoroughly study and understand the definition and meaning of torture, it is necessary to analyze cumulatively both Georgia’s criminal law and international legislation and the European Court of Human Rights practice.

Since dignity is a fundamental value of a person and an absolutely protected legal good, its protection is also guaranteed by the Supreme Law of Georgia—the Constitution.

According to the Constitution, the standard of protection of this right is high, which was reflected in the criminal law of Georgia, as a result of which several articles of the Criminal Code were formed, with signs of various crimes but with common legal good, in particular, human dignity. The first part of Article 144¹ of the Crime Code of Georgia refers to the crime of torture, the definition of which, the in-depth study of each of its constituent elements, is necessary to distinguish the said crime from similar crimes, such as, for example, inhumane and humiliating treatment, etc. In this case, together with the legislation of Georgia, the European judicial practice of human rights is necessary, in which the standard of how the court should be guided and how this or that case should be evaluated, on the verge of torture or inhumane and humiliating treatment.

Considering the international importance of the crime of torture, the conventional essence and meaning of its definition are pretty relevant. Their similarity and differences are interesting. As a result of studying and comparing the definition of Article 144¹ of the Criminal Code of Georgia and the crime of torture established in international conventions, it became clear that despite the similarities between the definitions, the difference between them is evident, in particular, the article of torture established in the legislation of Georgia is more general, the perpetrator of the crime is not specified, unlike the United Nations and the European Convention on the Protection of Human Rights and Fundamental Freedoms. The mentioned difference may create difficulties in solving the legal issue at the international level because the crime considered torture by the legislation of Georgia cannot be qualified as torture by international practice.

Due to the danger of the crime of torture and its widespread nature and scale, it is necessary to perfect the definition of the article presented in the Criminal Code of Georgia to study its essence and meaning to present legislative gaps and problematic issues. Depending on the need, changes should be made in relation to the definition and create a more precise, easier-to-understand definition of the mentioned crime, which will have an informative and preventive character.

It is necessary to regulate the definition of torture at the international and legislative levels and to establish a unified approach and standards regarding the qualification of the mentioned article, both according to domestic legislation and at the global level, to reduce the number of problematic issues. Raise public awareness, which will have a preventive character for the crime of torture.

Bibliography

Normative material

1. Constitution of Georgia (In Georgian).


2. Criminal Law Code of Georgia (In Georgian).


3. European Convention on Human Rights (In Georgian).


4. UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (In Georgian).

Court decisions

5. ECtHR. Kudla v Poland (GC). 2000. IX 35 EHRR 198 (In English).


6. ECtHR. Eland v UK A 25. 1978. EHRR 25. para. 162 PC (In English).


7. ECtHR. Kalashnikov v Russia. 2002. VI 36 EHRR 587 (In English).


8. ECtHR. Audin v Turkey (GC). VI 25 EHRR 25 (In English).


9. ECtHR. Castello-Roberts v UK. 1993. 19 EHRR 112. paras. 26-28 (In English)


10. A v UK. 1998. 27 EHRR 611 (In English)


11. ECtHR. Tyrer v. the United Kingdom. 1978. Series A N26 (In Georgian).


12. Selmouni v. France (GC). 1999. N25802/94. ECHR 1999 –V (In Georgian).

Scientific literature and other supporting materials

13. Reid, A. 2001. Collection of main international legal acts in the field of human rights. First part. Public Defender’s Library. (In Georgian).


14. Alptekin, S. and others. Office of the High Commissioner for Human Rights, Istanbul Protocol. Guidelines for the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman Treatment or Punishment. 2010. Professional Training Publication Series N8. (In Georgian).


15. Convention against Torture and Other Cruel, Inhuman or Degrading or Punishment. 26 June 1987. (In English).


16. Batonishvili, D., 2013. Institute of Law. Modern Law Review. (In Georgian).


17. GPT report on the visit to Albania from 23 May to 3 June 2005. GPT/inf (2006)24. par. 54 (In Georgian).


18. Reid, A. 2005. Prohibition of Torture, Implementation of Article 3 of the European Convention on Human Rights. Guide. Transl. Chelidze, L., Bokhashvili, B., Mamukelashvili, T. Council of Europe (In Georgian).


19. Commentary on the Constitution of Georgia. 2013. Chapter Two. Georgian citizenship. “Basic human rights and freedoms”. Publishing house “Petit” (In Georgian).


20. Kvatchadze, M., Mamaladze, E., Dateshidze, N., 2019. Prohibition of torture: reflection of the standards stipulated by Articles 3 and 6 of the European Convention on Human Rights in national judicial practice. (In Georgian).


21. Nachkibia, G. 2011. Criminal law. General part. (In Georgian).


22. Tkesheliadze, G. and others (authors collective). 2007. General part of criminal law. Textbook. (In Georgian).


23. , M., Todua, N., Mamulashvili, G. 2016. Private part of criminal law. Book one. (In Georgian).


24. Gamkrelidze, O. and others. (authors collective). 2008. Commentary on the judicial practice of criminal law. Crime against a person. (In Georgian).


25. Jishkariani, B. 2016. Private part of criminal law. Crimes against a person. (In Georgian).


26. https://www.icrc.org/eng/resources/documents/misc/57/jpg5.htm.


27. https://geolaw.wordpress.com/2012/11/05/wamebis-akrdzalva/.

Footnotes

[1] Reid, A. 2001. Collection of main international legal acts in the field of human rights. First part. Public Defender’s Library. p. 5.

[2] There. p. 115.

[3] There, p. 255.

[4] https://www.icrc.org/eng/resources/documents/misc/57/jpg5.htm. (20.02.2024).

[5] Office of the High Commissioner for Human Rights. Istanbul Protocol. Guidelines for the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman Treatment or Punishment. 2010. Professional Training Publication Series N8. p. 6.

[6] Convention against Torture and Other Cruel, Inhuman or Degrading or Punishment. 26 June 1987. Art. 1.

[7] Batonishvili, D., 2013. Institute of Law. Modern Law Review. p. 63.

[8] GPT report on the visit to Albania from 23 May to 3 June 2005. GPT/inf (2006)24. par. 54.

[9] Reid, A. 2005. Prohibition of Torture. Implementation of Article 3 of the European Convention on Human Rights. Guide. Transl., Chelidze, L, Bokhashvili, B, Mamukelashvili, T. Council of Europe. p. 52.

[10] Constitution of Georgia. Article 9.

[11] Commentary on the Constitution of Georgia. 2013. Chapter Two. Georgian citizenship. “Basic human rights and freedom”. Publishing house “Petit” Ltd. p. 116.

[12] ECtHR. Kudla v Poland (GC). 2000 IX 35 EHRR 198. para. 91.

[13] ECtHR. Eland v UK A 25 (1978). 2 EHRR 25. para. 162 PC. Kalashnikov v Russia. 2002 VI 36 EHRR 587. Audin v Turkey (GC). 1997-VI 25 EHRR 251.

[14] ECtHR. Castello-Roberts v UK (1993). 19 EHRR 112. paras. 26-28. A v. UK (1998). 27 EHRR 611.

[15] https://geolaw.wordpress.com/2012/11/05/wamebis-akrdzalva/ (26.02.2024).

[16] Reid, A. 2005. Prohibition of torture, implementation of Article 3 of the European Convention on Human Rights. Guide. Transl., Chelidze, L., Bokhashvili, B., Mamukelashvili, T. Council of Europe. p. 52.

[17] Tyrer v. the United Kingdom. 25 April 1978. Series A N26.

[18] European Convention on Human Rights. Art. 15.

[19] Selmouni v. France (GC). 28 July 1999. N25802/94, ECHR 1999 – V.

[20] Criminal Law Code of Georgia.

[21] UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[22] Kvatchadze, M., Mamaladze, E., Dateshidze, N. Prohibition of Torture: Reflection of the Standards Under Articles 3 and 6 of the European Convention on Human Rights in National Judicial Practice. Vol. 2019. p. 45.

[23] Nachkibia, G., Criminal law. General part. Vol. 2011. p. 250.

[24] Tkesheliadze, G. and others (authors collective). General part of criminal law. Textbook. Vol. 2007, p. 110.

[25] Lekveishvili, M., Todua, N., Mamulashvili, G. Private Part of Criminal Law. Book One. Vol. 2016. p. 288.

[26] Gamkrelidze, O. and others (authors collective). Commentary on the judicial practice of criminal law. Crime against a person. 2008. pp. 199-200.

[27] Jishkariani, B. Private part of criminal law, crimes against a person. Vol. 2016. p. 213.