33 |
P age b
the special part of the code. Acts of necessity is an act which is performed to protect a legal right of the actor himself or the right of another person from an imminent and serious danger.
154
Thus the person who performed such act is exempted from criminal liability. Contrary to the CC, the
HRC ruled out the possibility for defense of justifiable acts, such as the defense of necessity, to be invoked to justify practice of torture.
155
In addition, CC in its general part, chapter II, section II provides that acts required or authorized bylaw are not punishable as long as they did not exceed the legal limits provided. Particularly acts done in respect of public, state or military duties, and acts in exercise of right to correction or discipline are exempted from criminal liability.
156
This means lawful sanction or punishment inherently resulting severe pain or suffering does not incur criminal liability, unless
it exceeds the legal limit
157
This is also recognized under the UNCAT article 1(1). The CC provides fine (Art. 90 ff, confiscation of property (Art. 98 ff, compulsory labor (Art. 103 ff, deprivation of liberty (simple and rigorous imprisonment- Art. 106 ff) and death (Art. 117 ff) as a major and serious penalty. However, a sanction considered as lawful under national law nonetheless constitutes torture under international law if it causes severe pain or suffering and meets the additional elements of the torture.
158
The HRC point out forms of corporal punishment that have been outlawed under international law including using excessive chastisement, canes or whips, and lashes ordered as punishment for crime or as an educative or disciplinary measure.
159
Besides, the HRC and the CAT in their jurisprudences confirmed that corporal punishments are not considered as lawful sanction and rather they are in breach of the covenants.
160
Correspondingly, the CC does not recognize corporal punishment or punishment to the body of a personas form of punishment. ibid Art. 75.
155
HRC, Concluding Observation on Israel, UN doc. CCPR/CO/78/ISR, 2003, Para 18. The committee explicitly declared that the defense of necessity is incompatible with article 7 of ICCPR. CC Art. 68 (a and b. ibid, sub-article (c) (Emphasis added.
158
George Osbourne v Jamaica
, Communication No. 759/97, HRC, Judgment, 2000, Para 9(1). The Committee mention its concerns of the sentence subjecting the author for 15 years imprisonment with hard labor and 10 stroke of the tamarind switch is against article 7 of the ICCPR and stated that the permissibility of the sentence under domestic law cannot be invoked as justification under the covenant.
159
HRC, GC No. 20, Para 5.
160
Pryce v Jamaica
, Communication No. 793/98, HRC, Judgment, 2004, Para 6 (2); HRC, Concluding Observation on Yemen, UN doc. CCPR/CO/84/YEM, 2005, Para 16.
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