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Reference:

Foreign experience of the constitutional and criminal law prohibition of torture

Bardeev Konstantin Andreevich

Lecturer of the Department of Constitutional and Administrative Law, Kuban State University

350000, Russia, Krasnodar Territory, Krasnodar, Stavropol str., 149

bardeev_k@rambler.ru

DOI:

10.25136/2409-7136.2023.6.40935

EDN:

ALXOEL

Received:

02-06-2023


Published:

09-06-2023


Abstract: The subject of research in this article is the long-term experience of a number of countries of the modern world summarized by the author in the field of legislative regulation of criminal liability for torture in many of its manifestations. In addition, the relevant international legal provisions, which are the legal basis for combating torture in national legislation, acted as such. In particular, we are talking about the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Since the prohibition of torture is absolute, comprehensive and constitutional, which is reflected in a number of state constitutions, the subject of the study was the norms of the basic laws of a number of countries. The scientific novelty of the work lies in the fact that in the article, based on the analysis of the palette of legal definitions of torture existing in foreign law from brief, reflecting only its main properties, to detailed, descriptive ones, the author's vision of the grounds for distinguishing between these definitions is determined, heterogeneous approaches to understanding how the object of torture, as well as its subject, to determine the place of this crime in the structure of the Special Part of Criminal Laws.


Keywords:

foreign criminal law, concept of torture, composition of torture, signs of torture, cruelty, inhumanity, criminal law, torture, criminal legislation, responsibility

This article is automatically translated. You can find original text of the article here.

The relevance of the analyzed topic is justified by a number of factors. In scientific works, among representatives of law enforcement agencies and in society, the question of the need to expand the legislative framework for countering torture has long been debated. In this regard, it is important to study the legislative experience of foreign countries in combating this phenomenon. At different times, various scientists were engaged in the problems of torture, in particular A.A. Herzenzon, R.D. Sharapov, B.T. Bezlepkin, K.V. Dvoryanskov, A.I. Chuchaev [1, 2, 3, 4] and other researchers. In these works, torture was considered in various aspects, including the expediency of their independent criminalization. In particular, back in 2005, K.V. Dvoryanskov proposed to place a separate composition of torture in the Criminal Code of the Russian Federation. However, this suggestion was ignored.

However, the relevant works were written before the well-known reform of 2022. The scientific and practical novelty of this work is that, taking into account foreign rule-making experience, a number of proposals are formulated in the conclusion of the study, which may be useful both at the level of doctrine and from the position of further improvement of the current criminal law.

The methodological basis of the work is the dialectical method of cognition, methods of formal logic (definition, classification), the comparative method.

The legislative basis for the special legal counteraction to torture in foreign countries is a number of international acts, among which the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984 (hereinafter - the CAT) stands out. Of course, this applies to the norms of foreign criminal laws, as well as other regulations in this area. It defines torture as "any act by which severe pain or suffering, physical or moral, is intentionally inflicted on a person in order to obtain information or confessions from him or from a third person, punish him for an act that he or a third person has committed or is suspected of committing, as well as intimidate or force his or a third person, or for any reason based on discrimination of any nature, when such pain or suffering is caused by a public official or other person acting in an official capacity, or at their instigation, or with their knowledge or acquiescence. This definition does not include pain or suffering that arises only as a result of legitimate sanctions, is inseparable from these sanctions or is caused by them accidentally." In general, this definition is the basis of national definitions.

It is rightly stated in the literature that the common denominator in the criminalization of torture is that this act is singled out as independent serious crimes and this trend is increasingly manifested at the level of national lawmaking [5, p. 70].

Let's consider legislative approaches to criminalizing torture in general, but first let's turn to the constitutional and legal component of this process. The prohibition of the use of torture is a constitutional guarantee in a number of states of the former USSR and is absolute and universal: (Azerbaijan [6], Armenia [7], Belarus [8], Kazakhstan [9], Moldova [10], Tajikistan [11], Turkmenistan [12], Uzbekistan [13], Kyrgyzstan [114]). This is largely due to the anthropocentric nature of the Constitutions of these countries [15, pp. 639-630].

The main differences in the definitions of the concept of torture formulated in foreign criminal codes and the main features of its composition as an independent single crime are expressed in the following:

1) according to the subject of the crime the presence or absence of a special subject. Sometimes it acts as a qualifying feature. Further inclusion in the number of subjects of persons who are not officials or acting in an official capacity, or refusal to include such;

2) different definition of the degree (threshold) of physical and mental (moral) suffering inflicted on a person;

3) inclusion or refusal to include in the content of the subjective side of the special purpose of the crime and the motive of discrimination on various grounds; an open or closed list of special purposes of the act;

4) different definition of the main direct object of torture. The social relations in the sphere of ensuring the fundamental rights and freedoms of the individual, the constitutional rights of man and citizen, ensuring peace and security of mankind are indicated.

Far from everywhere, the national legislator has authentically implemented the concept of torture in the form it is formulated in the CPT. There are rather narrow interpretations and vice versa, expansive, detailed in comparison with the checkpoint. Thus, the Criminal Code of Belarus has fully implemented the provisions of the CHECKPOINT. On the other hand, the Criminal Code of Abkhazia is laconic: torture is understood as the infliction of physical or moral suffering in order to compel testimony or for other purposes.

Often such formulations suffer from excessive clutter, which creates difficulties in their application [16, p. 45]. Special purposes of torture are not always specified, although this is one of their most important signs, or the goals are formulated quite narrowly. Another important feature of the criminal legislation of various States is the absence of a special composition of torture as an independent crime. Legislators in many countries prefer to establish torture as a qualifying sign of torture or abuse of official authority, or coercion to testify, or other types of abuse of power.

The direct, specific and generic objects of torture are very different in various legislations and, accordingly, their place in the system of the Special Part of the Criminal Code:

1) Crimes against health (Albania, Abkhazia, Armenia);

2) attacks against physical or mental integrity (France);

3) Encroachments against individual freedom (Argentina, Colombia);

4) Acts against constitutional rights (Chile, Kazakhstan, Tajikistan);

5) Encroachments against the democratic rights of citizens (China);

6) Encroachments against human and civil rights and freedoms (Macedonia);

7) Crimes against justice (Vietnam, Kazakhstan);

8) Official crimes (Iraq, Iran, Kyrgyzstan, Paraguay, Tunisia);

9) crimes against state power, interests of public service (Turkmenistan);

10) acts against humanity, human security, including those committed as part of a systematic, large-scale attack on the civilian population (Belarus, Portugal, Peru, Azerbaijan, Georgia);

11) War crimes (Slovakia);

12) Encroachments on values protected in international law (Croatia).

Such a spread of objects of torture seems quite correct, if only for the simple reason that countries have implemented the provisions of the CAT in different ways and have their own legal traditions. In the Russian Federation, torture is also presented in various chapters. However, we believe that the norm criminalizing it should also be located in the chapter on crimes against the person, and in the last chapter of the Criminal Code.

Returning to the legislation of the countries of the former USSR, we note that torture is criminalized as:

1) an independent single crime, including within the framework of a general article on crimes of a certain type (for example, in the Criminal Code of Belarus and the Criminal Code of Georgia, this is a type of crimes against humanity);

2) as a qualifying and especially qualifying feature of a number of crimes. These include: torture, infliction of various harm to health, coercion to testify and other forms of abuse or abuse of power (for example, the Criminal Code of Abkhazia).

The goals of this crime can be either a closed list (basically, it is coercion to testify) or an open one.

When analyzing the array of qualifying and especially qualifying signs of torture, we came to the conclusion that their lists were quite naturally created not only under the influence of international law, but also, perhaps, to a greater extent under the influence of national doctrine. Among them, it is possible to distinguish general (found in many legislations) and special, which are characteristic of a particular criminal law.

Common features include:

causing death or serious (serious) harm to health;

committing an act against a minor, a pregnant woman, a person who is obviously in a helpless state (sometimes they indicate disability, obvious disability);

the commission of an act by two or more persons (a group of persons, an organized group);

on discriminatory grounds (unless this is indicated as a constructive feature of the composition);

with the use of weapons or special tools and devices. At the same time, we consider it necessary to note that it is advisable to include such a qualifying feature in Russian criminal legislation.

The special features of the components of this crime are very diverse. Thus, the legislation of Armenia provides for special cruelty, torture against a person or his relatives in connection with the performance of official activities by this person or the performance of public duty, involving the taking of hostages or kidnapping.

The Criminal Code of France contains a detailed list of qualifying features, among which, along with the general ones, there are such as the commission of an act against an ascending relative, foster parents, spouse or cohabitant, against various categories of officials, against a witness or victim, with the use or threat of use of weapons. In addition, conjugacy with other crimes, for example, of a sexual nature, is used.

It should be noted that repetition, repetition are established as qualifying signs as part of torture in the Criminal Code of a number of countries (Tajikistan, Kazakhstan, Georgia, Turkmenistan).

Committing an act in conditions of war or threat of war, internal political instability or any other emergency or martial law is a qualified type of torture under the Criminal Code of Turkmenistan. These include the use of torture associated with illegal medical manipulations or the use of medical instruments (Criminal Code of Georgia).

The most important issue that should be resolved definitively is whether the need to criminalize torture as an independent ordinary crime is justified, and not just as an official offense against justice or, in general, the international community. Indeed, the CAT and other important documents in the field of combating torture emphasize obtaining a confession or other information from the victim, but the range of goals is not limited to this. The use of torture as a qualifying sign of torture is incorrect. Torture can not always be used exclusively in the framework of criminal proceedings (at the pre-trial stages and directly during the trial), and to qualify torture as beatings, torture is nothing other than the application of criminal law by analogy.

Thus, as a result of the analysis carried out, we come to the conclusion that torture should be criminalized in the criminal law of States as an independent crime, and torture should be legally considered both as an international crime (military, against humanity) and in the context of other sections of the Criminal Code of the Russian Federation.

We propose to include the following articles in the Criminal Code of the Russian Federation:

Article 114.1. Torture

1. The use of severe intense physical or mental violence for the purpose of obtaining information, punishment, intimidation, coercion, discrimination or other similar purposes is punishable

2. The same act committed:

a) in relation to two or more persons;

b) a group of persons, a group of persons by prior agreement or an organized group;

c) with the use of specially adapted means, tools or methods that cause special physical pain, as well as chemicals, is punished

3. The acts provided for in part one or two of this Article, if they:

a) committed against a minor or other person who is obviously in a helpless state for the culprit;

b) committed against a woman who is obviously pregnant for the culprit;

c) involve extortion or violation of the statutory rules of relations between military personnel in the absence of subordination relations between them, is punished

Note 1. The definition of torture set out in this article applies to articles 63, 110, 357.1 of this Code.

Article 357.1. Torture

1. The use of torture as a means of systematically attacking citizens or the civilian population as a State policy towards certain national, ethnic, racial or religious groups is punishable

References
1. Herzenson, A.A. (1970). Criminal law and sociology: problems of the sociology of criminal law and criminal policy. M. 292 p.
2. Sharapov, R.D. (2006). Concept, qualification and criminal law prevention of criminal violence: Monograph. Tyumen. 186 p.
3. Bezlepkin, B.T. (2012). Commentary on the Criminal Procedure Code of the Russian Federation (article by article). M. 640 p.
4. Dvoryanskov, K.V., Druzin, A.I., Chuchaev, A.I. (2002). Criminal legal protection of the administration of justice (historical and legal research). M. 150 p.
5. Kapinus, O.S., Dodonov, V.N. (2008). Responsibility for torture in modern criminal law//Laws of Russia: experience, analysis, practice. 9. pp. . 62-71.
6. Constitution of the Republic of Azerbaijan 1995 URL: https://www.legalacts.az/ru/document/271/100421#i3 (date of circulation – 04.04.2023).
7. Constitution of the Republic of Armenia 1995 URL: https://www.president.am/ru/constitution-2015/ (date of appeal – 04.04.2023).
8. Constitution of the Republic of Belarus 1994 URL: https:// pravo.by/pravovaya-informatsiya/normativnye-dokumenty/konstitutsiya-respubliki-belarus/ (date of appeal – 05.03.2023 .).
9. Constitution of the Republic of Kazakhstan 1995 URL: ttp://adilet.zan.kz/rus/docs/K950001000 (date of appeal – 05.03.2023).
10. Constitution of the Republic of Moldova 1994 URL: https://www.legis.md/cautare/getResults?doc_id=111918&lang=ru (date of appeal – 05.03.2023).
11. Constitution of the Republic of Tajikistan 2016 URL: https://minjust.ww.tj/library/constitution_rus.pdf (date of appeal – 05.03.2023).
12. Constitution of Turkmenistan 1992 URL: https://online.zakon.kz/document/?doc_id=31337929#pos=6;-108 (date of appeal – 05.04.2023).
13. Constitution of the Republic of Uzbekistan 1992 URL: https://lex.uz/docs/35869 (date of appeal – 05.04.2023).
14. Constitution of the Kyrgyz Republic. URL: https://cbd.minjust.gov.kg/act/view/ru-ru/112215 (date of appeal – 04.04.2023).
15. Nanba, S.B. (2020). Constitutional dimension of personal (somatic) rights//Constitution and modernization of legislation: mater. XV International. school-workshop of young legal scholars (Moscow, May 27 – June 5, 2020)/. redcol. / T. Ya. Khabrieva. M. pp. 629-630.
16. Rakhmetov, S.M. (2014). Problems of improving the criminal legislation of the Republic of Kazakhstan: legal technology // Vedomosti of the Institute of Legislation of the Republic of Kazakhstan. 2. pp. 44-48.

Peer Review

Peer reviewers' evaluations remain confidential and are not disclosed to the public. Only external reviews, authorized for publication by the article's author(s), are made public. Typically, these final reviews are conducted after the manuscript's revision. Adhering to our double-blind review policy, the reviewer's identity is kept confidential.
The list of publisher reviewers can be found here.

The subject of the research in the article submitted for review is, as its name implies, the foreign experience of the constitutional and criminal law prohibition of torture. The stated boundaries of the study are fully respected by the author. The research methodology is indicated: when writing the article, the scientist used the dialectical method of cognition, methods of formal logic (definition, classification), and the comparative method. The relevance of the research topic chosen by the author is justified as follows: "In scientific works, among representatives of law enforcement agencies and in society, the issue of the need to expand the legislative framework for countering torture has long been discussed. In this regard, it is important to study the legislative experience of foreign countries in combating this phenomenon. At different times, various scientists were engaged in the problem of torture, in particular A.A. Herzenzon, R.D. Sharapov, B.T. Bezlepkin, K.V. Dvoryanskov, A.I. Chuchaev [1, 2, 3, 4] and other researchers. In these works, torture was considered in various aspects, including the expediency of its independent criminalization. In particular, back in 2005, K.V. Dvoryanskov proposed to place a separate composition of torture in the Criminal Code of the Russian Federation. However, this suggestion was ignored. ... the relevant works were written before the well-known reform of 2022." The scientist points out that the scientific novelty of the study "... consists in the fact that, taking into account foreign normative experience, a number of proposals are formulated in the conclusion of the study, which may be useful both at the level of doctrine and from the perspective of further improvement of the current criminal law." Of course, the author's proposal on criminalizing torture as a separate crime, as well as his recommendations on supplementing the Criminal Code with relevant articles 114.1 and 357.1, deserves the attention of the readership. Thus, the article submitted for review makes a certain contribution to the development of the national science of criminal law. The scientific style of the research is fully sustained by the author. The structure of the work is quite logical. In the introductory part of the article, the scientist substantiates the relevance of the chosen research topic, reveals its methodology, and indicates how the scientific novelty of the work manifests itself. In the main part of the article, the author carries out a critical analysis of the legislative (constitutional-legal and criminal-legal) basis of the special legal counteraction to torture in foreign countries. The final part of the work contains conclusions based on the results of the study. The content of the work corresponds to its name and does not cause complaints. The bibliography of the study is presented by 16 sources (constitutional acts, monographs, scientific articles, commentary). From a formal and factual point of view, this is quite enough. The nature and number of sources used in writing the article allowed the author to reveal the research topic with the necessary depth and completeness. There is an appeal to the opponents, it is general in nature due to the focus of the study and is sufficient. The scientific discussion is conducted by the author correctly; the provisions of the work are reasoned to the necessary extent. Conclusions based on the results of the conducted research are available, have the property of scientific novelty and deserve the attention of the readership. As the author notes, "... torture should be criminalized in the criminal law of States as an independent crime, and torture should be legally considered both as an international crime (military, against humanity) and in the context of other sections of the Criminal Code of the Russian Federation." The scientists also proposed specific formulations of Articles 114.1 and 357.1 of the Criminal Code of the Russian Federation, which, according to the researcher, should be supplemented by the code). The interest of the readership in the article submitted for review can be shown primarily by specialists in the field of criminal law, criminal law of foreign countries and criminal procedure.