National anti-torture legislation
Prevention of torture requires an effective national legal framework that incorporates international human rights standards and includes specific provisions to prohibit and prevent torture.
The APT advocates for legal and policy frameworks so that torture and other forms of ill-treatment are criminalised and prevented in law and in practice. We support efforts in countries around the world to draft, adopt and then implement anti-torture frameworks.
What should national anti-torture legislation include?
The UN Convention against Torture contains numerous provisions that serve to prevent, prohibit, and provide redress for torture.
One part of implementing the Convention at the national level is analysing existing domestic laws to determine whether the State already meets its obligations, and then, as necessary, amending existing laws or drafting entirely new laws.
The APT has published a comprehensive Guide on anti-torture legislation, which lists the elements that national law should include in order to respect the obligations under the UN Convention against Torture. It also provides examples of national legislation drawn from different regions and in different languages.
National anti-torture legislation should include the following themes:
1. Definition of torture: Torture must be a separate and specific crime in national law with a definition that meets the minimum standards of the Convention against Torture. The prohibition of torture is absolute and the defence of superior order cannot be invoked to justify torture. The penalty for the crime of torture must also reflect the gravity of the crime.
2. Modes of liability: National legislation must include explicit criminal liability for commission of torture, attempts to commit torture, complicity, other forms ofparticipation in torture, instigation of and incitement to torture, as well as acts of torture by public officials who acquiesce or consent to torture.
3. The exclusionary rule: Evidence obtained through torture and ill-treatment must be excluded in all proceedings.
4. Jurisdiction: States must be competent to act on alleged torture on all territories under their jurisdiction or when a State’s national is alleged to have committed torture. Other types of jurisdiction can be envisaged as well.
5. Complaints, investigations, prosecutions and extradition: The right to complain is a fundamental principle in anti-torture law. States must also protect witnesses and victims of torture against reprisals, and ensure prompt and impartial investigations of allegations of torture. All alleged perpetrators of torture must be prosecuted.
6. Amnesties, immunity, statute of limitations: There should be no amnesty for cases of torture and no immunity or statues of limitations for the crime of torture.
7. Non-refoulement: Persons who risk torture cannot be expelled, returned or extradited to another State.
8. Redress: National legislation must recognise the right to remedy and reparation for victims of torture.
Once the legal framework is established States must ensure implementation in practice.