52 |
P age b
committed. The criminal code did not, however, mention utilization of use of improper method on the victim for the acts of third person. The positive aspect of the criminal code in this regard is that it adds testimony as purpose for which torture can be committed as crime of use of improper method. The definition of torture under UNCAT does not clearly listed a purpose for obtaining testimony. Such extension of the definition by domestic law is not prohibited, rather the UNCAT article 1 (2) give recognition for more protection.
4.5.
The Status of the Perpetrator
Article 424 (1) provides that any public servant charged with arrest, custody, supervision, escort or interrogation of a person are those people who can commit act of torture as a crime of use of improper method. The phrase public servant include all government official whosoever they are entrusted with the custody, arrest, interrogation or escort of a person. In other words, it is the existence of duty to guard (escort, responsibility to interrogate, custody and arrest of the person under his control that determine whether a person is liable for committing torture as a crime of use of improper method. Therefore, any public officials that are not in control of the victim and responsible for his arrest, custody, escort or interrogation is not liable even if his is state officials and commit acts of torture. Likewise, UNCAT Article 1, in defining torture, provided that torture is said to be committed when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of public officials or other person acting in an official capacity. This indicate that in order to allege and censure state before CAT the state official [de jure or de facto] must be involved either directly by acting or failing to actor indirectly through instigation or giving consent for the commission of torture. This can be inferred from the jurisprudences of the committee.
237
The committee has also interpreted the language acting in an official capacity, for example, to include de facto authorities, including rebel and insurgent groups which exercise certain prerogatives that are comparable to those normally exercised by legitimate
237
Meskele K, note 15, 53; see APT 2016, note 87, 14;
|
