47 |
P age b
some case it decides without considering the severity and purpose, in some other cases it employ severity approach.
214
Nevertheless the CAT concluded that the distinction between torture and other ill-treatment is made on case by case analysis of an assessment of the severity of the treatment inflicted.
215
Unlike UNCAT this provision of Art. 424 (1) does not provide the requirement of severe pain or suffering, which is a threshold to distinguish torture from other ill- treatments. Nevertheless, the adjective severe pain or suffering is not clear and the utilization of this term under international human rights bodies may not have such problem as it does not results criminal responsibility of individual, nonetheless it is not advisable to use such vague terms in national criminal law. Thus, the domestic criminal law must come up with other clear term which is important for distinguishing torture from other acts or treatments like cruelty and brutality. The criminal code provision does not provides what acts may constitute a physical or mental torture. Although International laws did not do the same, the jurisprudences of international and regional human rights bodies provides lists of acts constituting torture by their nature.
216
When the new criminal code is its draft stage these jurisprudences were already know. The drafting body could consider them while preparing the criminal code. As the interpretation by human rights bodies to their respective instruments is binding on member state to the instrument, states should follow the footstep of these bodies in domestic application of the treaties. This has not been considered and included in the criminal code, which results that the code is open for doubt which benefits the accused of torture rather than ensuring his punishment.
214
Dragan Dimitrijevic v Serbia and Montenegro, Communication No. 207/2002, CAT, Judgment, 2004; See also
Jovica Dimitrov v Serbia and Montenegro
, Communication No. 171/2000, CAT, Judgment, 2005; Danilo
Dimitrijevic v Serbia Montenegro
, Communication No. 172/2000, CAT, Judgment, 2005, Para 7.2. CAT, Concluding Observation on the USA, UN doc. CAT/C/USA/CO/2, 2006, Paras 29-30. The committee held that the pain or suffering must be severe and maybe physical or mental in nature (Emphasis added. The Committee against Torture and Inter-American Commission of human rights provide list of acts constituting torture by their nature such the use of water, nakedness, hooding, physical beatings, forced standing, prolonged use of light and loud noises, deprivation of food, limited access to hygiene and medical care, mock executions or death threats, and threats of harm to family members, applying electric shocks to a person, beating, cutting with pieces of broken glass, putting a hood over a person's head, burning him or her with lighted cigarettes and use of dog to induce fear. For further see Jurisprudence of the CAT, Part IV, 206-7. Available at:
<
http://www.omct.org/files/2006/11/3979/handbook4_eng_04_part4.pdf
> (accessed on 5 June 2019); D. Weissbrodt and C. Heilman, Defining Torture and Cruel, Inhuman, and Degrading Treatment (2011) 29 Law & Ineq. 343. Available at <
http://scholarship.law.umn.edu/faculty_articles/366
> (accessed on 5 June 2019)
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