48 |
P age b
In addition the inflicted pain or suffering through the actor omission, could be physical or mental both under the criminal code and international laws.
217
Finally, the provisional expression in the criminal code seems that torture is committed by act, and does not include torture by omission. This can be inferred from the act listed which are committed by act and may not be done by omission of duty. However, although the definition under article 1 of UNCAT provides that torture can be committed by act, the jurisprudences of international bodies repeatedly maintained that torture can also be committed by omission. Thus the phrase any act under article 1 of UNCAT should not be narrowly interpreted, rather it should be understood as torture committed by omission.
218
The approach used by the criminal code is different. It lists acts like inducing, promising, threaten or treat, blow, cruelty, physical or mental torture. But, it could be argued that an act as defined by the criminal code may constitute both commission and omission.
219
Therefore, torture resulting from omission of what is proscribed by the law can be said violation of article 424 of the criminal code.
4.3.
Intention
Mens rea
on the other hand is the subjective element of a crime, a mental state or state of mind of the criminal, which can be either intention or negligence. Intention in general indicates that a person engaged in certain acts/omission that results some illegal consequences knowingly or deliberately. The mens rea or mental state required for the crime of use of improper method by torture is not clearly provided in the criminal code of 2004. Although Article 424/1 does not provide for the mental element clearly, since a crime is not punishable by negligence unless the special part provides so, it is logical to presume that the article impliedly requires intention. In other word unless a special part of the criminal code provide a crime punishable with negligence specifically and clearly, there is no crime by negligence. So that when the special part of the criminal code CAT, Concluding Observations on the US, note 215, ibid. CAT, GC No. 2, Para 15; CAT, Concluding Observations on Chile, note 173, Paras 6 and 7; Hajrizi Dzemajl et
al.
, note 90, ibid see also Rodley N. and Matt P, note 84, ibid (Emphasis added. CC, Art. 23 (1) CC, Art. 59 (2).
|
