Difference between revisions of "Torture"

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Cambodia acceded to the CAT on 15 October 1992, but even after 18 years that Cambodia acceded to the CAT, the country’s legal and judicial system is unable to effectively prevent and punish acts of torture. The definition of “torture” remains unclear under Cambodian law, and the Government did not use the opportunity as provided by the new Penal Code to include a proper definition of torture.
 
Cambodia acceded to the CAT on 15 October 1992, but even after 18 years that Cambodia acceded to the CAT, the country’s legal and judicial system is unable to effectively prevent and punish acts of torture. The definition of “torture” remains unclear under Cambodian law, and the Government did not use the opportunity as provided by the new Penal Code to include a proper definition of torture.
  
The evidence collected by various NGOs indicates that the majority of cases of torture occur in police custody, often in the form of extracting confessions.<ref> Joint Cambodian NGO Report on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in the Kingdom of Cambodia.  Presented to the UN Committee Against Torture (CAT) prior to Cambodia’s second periodic report at the 45th session of CAT, held in Geneva from 1 to 19 November 2010, October 2010, available at http://www.sithi.org/temp.php?url=media_view.php&mid=3260&publication=1&<ref/>
+
The evidence collected by various NGOs indicates that the majority of cases of torture occur in police custody, often in the form of extracting confessions.<ref> Joint Cambodian NGO Report on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in the Kingdom of Cambodia.  Presented to the UN Committee Against Torture (CAT) prior to Cambodia’s second periodic report at the 45th session of CAT, held in Geneva from 1 to 19 November 2010, October 2010, available at http://www.sithi.org/temp.php?url=media_view.php&mid=3260&publication=1&</ref>
  
 
There is no comprehensive and transparent system of receiving complaints against the police and other law enforcement officials, and the Government has not yet established a national preventive mechanism in accordance with its obligations under the Optional Protocol to the Convention against Torture (OPCAT).<ref> Joint Cambodian NGO Report on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in the Kingdom of Cambodia.  Presented to the UN Committee Against Torture (CAT)</ref>
 
There is no comprehensive and transparent system of receiving complaints against the police and other law enforcement officials, and the Government has not yet established a national preventive mechanism in accordance with its obligations under the Optional Protocol to the Convention against Torture (OPCAT).<ref> Joint Cambodian NGO Report on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in the Kingdom of Cambodia.  Presented to the UN Committee Against Torture (CAT)</ref>

Revision as of 11:21, 17 November 2010

What is Torture?

Under international law, the prohibition against torture is considered a right that is absolute in nature and does not tolerate exceptions. The prohibition is consecrated in the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), adopted by the United Nations General Assembly on 10 December 1984.

Many international instruments have further elaborated the general prohibition according to different situations, people, and scenarios where torture is likely to happen [1]

This guide primarily focuses on the class of ill-treatments that are called torture, although many of these guidelines would also apply to inhuman or degrading treatment and other forms of mistreatment. The question of whether a class of treatments qualifies as torture is often difficult to answer. In one court, a given class of treatments may constitute torture, while in another court, it may not. Ill-treatment may be considered torture or inhuman or degrading treatment, depending on the facts.

International Legal Framework

The United Nations Convention Against Torture

The prohibition against torture is contained in the most important human rights international instruments,[2]but the most comprehensive definition of torture is given in the Convention Against Torture (CAT), first adopted by the United Nations on 10 December 1984. The Convention defines torture as:

Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him, or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in, or incidental to, lawful sanctions.

According to the norm, then, the following elements, must all be satisfied in order for an act to be classified as torture: - The actor must be a public official or another person acting in an official capacity. - The act must be intentionally inflicted. - The pain or suffering must be severe. - The purpose of the act must be obtaining information or a confession. - Torture is excluded if it is inherent or incidental to lawful sanctions.

The Perpetrator

The “State Action”

Only a public official or another person acting in an official capacity can commit torture. People who do not represent the state’s interest in any capacity cannot be punished for the specific crime of torture, under the CAT. However, article 1(2) of the CAT leaves open the possibility that other international instruments or national legislation may contain wider provisions that would reach a broader definition of perpetrators.

The U.N. Special Rapporteur on Torture, Nigel S. Rodley, interprets the state action requirement to be met when public officials are “unable or unwilling to provide effective protection from ill-treatment (i.e., fail to prevent or remedy such acts), including ill-treatment by non-State actors.” [3]

Under the CAT, each state must refrain from acting, but also has a positive obligation to prevent torture. Article 2 declares that the states must take “effective legislative, administrative, judicial or other measures” in order to prevent acts of torture under its jurisdiction. Furthermore, under Article 4, states must ensure that torture, the attempt to commit torture, and complicity or participation in torture are considered criminal offenses and punished consequently. States also have the obligation to provide victims of torture with the possibility to complain before a judge and seek redress. It must also provide compensation for the victim’s heirs in case of death. [4]

No war or internal emergency can be invoked by the State to derogate from the absolute prohibition of torture. Additionally, no substantive defense (e.g., self-defense, state of necessity or superior order) or procedural means (e.g.,statutes of limitation or prescription) can avoid responsibility for torture. [5]

Other perpetrators

The international system addresses the State as duty-holder and typically does not contemplate the individual’s responsibility. The CAT adopts the same approach.

Nonetheless, non-State actors are increasingly engaged in conducts which violate international human rights standards, including torture. Non-State actors include, for example, private individuals, companies, members of de facto regimes, and members of rebel groups hostile to the formal government. [6]. The violation of Common Article 3 of the 1949 Geneva Conventions,[7] or the commission of a crime against humanity, as defined by the Statute of the International Criminal Court [8] are examples of such conduct.

Yet even when these violations occur, a link to an organization—such as a party to the conflict or a group carrying out attacks on the civilian population as part of a policy—is necessary to impose individual criminal responsibility. [9].

The International Criminal Tribunals have upheld this view of the state action requirement. [10] The Inter-American Court of Human Rights has generally upheld the State's obligation to protect individuals from torture, even if an act was not committed in an official capacity. For example, in Velasquez Rodriguez v. Honduras, the Court held the State responsible for the “acts of its agents undertaken in their official capacity and for their omissions, even when those agents act outside of the sphere of their authority or violate international law.” [11]

An Intentional Act

The second element that must be present to qualify an act as torture under the CAT is an intentional act. Webster's English Dictionary defines intent as a state of mind that is “usually clearly formulated or planned purpose”. [12]. Thus, a police officer hitting a suspect during interrogation is an intentional act, whereas a prisoner getting sick due to prison conditions, may not implicate the State.

How broad the “intent” requirement can be?

The CAT reads the intent requirement broadly. Article 3 indicates that no State Party "shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture." Thus, even if the State doesn't sponsor torture in its own country, it has a responsibility under the CAT not to send people to places where it is likely that torture would occur, otherwise the State itself risks to be considered acting with the intent to commit torture.

The European Court of Human Rights (ECHR) has made the intent requirement easier to satisfy by creating a rebuttable presumption of torture for those who are injured while in police custody. In Selmouni v. France, the ECHR noted that “where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused.” [13]


Severe Pain or Suffering

The third element of torture under the CAT definition is severe pain or suffering. There are different tests used to determine whether pain or suffering is severe enough to constitute torture.

One approach is to distinguish between torture and inhuman or degrading treatment, essentially creating “two degrees” of ill treatment. The CAT prohibits inhuman and degrading treatment as well as torture. According to Article 16, each State must prevent other acts of cruel, inhuman or degrading treatment, which, even if they do not amount to torture, are “committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” A single act may be both torture and inhuman or degrading treatment. The distinction between the two levels is essentially subjective, and is based on the intensity of the suffering inflicted.

In Ireland v. UK, the European Court of Human Rights (ECHR) ruled that acts of inhuman or degrading treatment must attain a “minimum level of severity,” whereas torture must involve “serious and cruel suffering.” The Court can consider the duration of the treatment, the physical effects of the treatment, the mental effects of the treatment, and the sex, age and state of health of the victim in making the assessment.[14]

The ECHR also requires consideration of the customary practices of different cultures. For example, beatings may not be considered torture in some places, while just tearing a woman's clothes in other places could be considered torture. [15]

The Human Rights Committee of the International Covenant on Civil and Political Rights also noted that inhuman or degrading treatment "depends on all the circumstances of the case, such as the duration and manner of the treatment, its physical and mental effects as well as the sex, age and state of health of the victim". The Committee also stated that corporal punishment constitutes cruel, inhuman and degrading treatment. [16]

A second approach to defining what constitutes severe pain is to view human contact more broadly, seeing any contact as potentially a violation of the right to physical and psychological integrity.[17] This is also a subjective test, but it may be easier to convict people of torture under this standard.


Committed for Wrongful Purpose

The fourth requirement in the CAT’s definition of torture is a wrongful purpose. This purpose distinguishes torture from the other forms of ill treatment in Article 16. In order to satisfy this element, according to Article 1, the act must be done for such purposes as obtaining information or a confession, punishment for an act the victim or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason being "based on discrimination of any kind". This list is generally viewed as offering non-exhaustive examples. Many countries have interpreted the purpose requirement differently, with some eliminating it altogether.


Not Arising Out of Lawful Sanctions

The fifth element of torture under the CAT is that the treatment cannot arise out of lawful sanctions. This means judicially imposed sanctions and other enforcement actions authorized by law cannot be torture. Paradoxically, these “lawful sanctions” would seem to include the death penalty, while simultaneously excluding sanctions that defeat the object and purpose of the CAT–prohibiting torture. For this reason, the provision has been criticized for undermining the universality of CAT.

The Special Rapporteur on Torture has clarified that the term "lawful sanctions" refers to sanctions which are allowed by both national and international standards. Thus, although a sanction, such as a death sentence, may be legal under national law, if it violates international standards, including the absolute prohibition against torture and cruel, inhuman or degrading treatment or punishment, the sanction is not considered “lawful” under the CAT. For example, corporal punishment is prohibited in all situations, by the International Covenant on Civil and Political Rights Article 7.[18] Any other interpretation would defeat the purpose of international standards that aim to prohibit torture.[19]


Standard Minimum Rules for the Treatment of Prisoners

The Standard Minimum Rules for the Treatment of Prisoners[20] were adopted in1955 by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders and approved by the Economic and Social Council with two resolutions in 1957 and 1977.[21]

The document set out accepted good principles and practices on how to treat prisoners, including conditions and access to help. For example, Article 93 noted that “[f]or the purposes of his defence, an untried prisoner shall be allowed to apply for free legal aid where such aid is available, and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him confidential instructions.”[22] It is generally extremely important that prisoners have access to legal services, especially those who have been tortured—as they may be more vulnerable than other types of prisoners.

The Standard Minimum Rules apply to all categories of detainees and lay down minimum standards for administration of detention facilities, underlining the absolute prohibition of all cruel inhuman or degrading punishment, including corporal punishment for disciplinary reasons.[23]


Country Specific Applications

Article 4(1) CAT states that “Each State Party shall ensure that all acts of torture are offences under its criminal law [...]”.

According to the Committee Against Torture, the definition of torture in national legislations should, at least, cover the elements provided by the CAT in its Article 1(1),[24] but it could also be broader, according to Article 1(2).[25] Therefore, the implementation of the CAT may vary significantly among countries.

A brief overview of some national systems is useful to understand which acts generally fall under the umbrella of torture, and who can be punished as torturer. For instance, under CAT only a public official or another person acting in an official capacity can commit torture. However, states can decide to punish private individuals who have committed torture.

Often such human rights abuses by non-state actors are actionable only through the application of the criminal or civil law, without recourse to human rights provisions. Most of the times, private human rights abuses will be in breach of existing national law. Lawyers should ask Courts to extend constitutional or human rights protection where the national law is lacking.[26]


Burundi

Burundi acceded to the CAT on 18 February 1993, and it recognizes the competence of the Committee of the United Nations Against Torture to receive and consider individual communications in accordance with article 22(1) of the CAT.

The Burundian Constitution explicitly forbids torture in Article 22, and the new 2008 Criminal Code brought the country into compliance with Article 1 CAT. The new Code criminalizes Torture and Other Cruel, Inhuman and Degrading Treatments in Chapter III, articles 204-209.[27] Article 204 follows the CAT in defining what is torture, providing that only public officials or other persons acting in an official capacity can be responsible for torture under national law. The domestic provisions provide for aggravating circumstances, such as committing torture on a witness, a victim or a civil part, either to prevent them denouncing the facts or because their statements, complaint or deposition.

Any act of torture committed by a private individual can be prosecuted only under general assault charges,6 which provide relatively minor penalties for such a grave crime.


Cambodia

Cambodia is a civil law system resulting from a mixture of French-influenced codes, the United Nations Transitional Authority in Cambodia (UNTAC) period, royal decrees, and acts of the legislature. However, influences of customary law and remnants of communist legal theory, as well as increasing influence of common law, are all present.

In October 2009, the National Assembly of the Kingdom of Cambodia adopted a new Criminal Code, which draws largely on the French Criminal Code, and it replaces the UNTAC Code of 1992. It entered into force in October 2010.

Cambodia acceded to the CAT on 15 October 1992, but even after 18 years that Cambodia acceded to the CAT, the country’s legal and judicial system is unable to effectively prevent and punish acts of torture. The definition of “torture” remains unclear under Cambodian law, and the Government did not use the opportunity as provided by the new Penal Code to include a proper definition of torture.

The evidence collected by various NGOs indicates that the majority of cases of torture occur in police custody, often in the form of extracting confessions.[28]

There is no comprehensive and transparent system of receiving complaints against the police and other law enforcement officials, and the Government has not yet established a national preventive mechanism in accordance with its obligations under the Optional Protocol to the Convention against Torture (OPCAT).[29]

Notes

  1. Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment; United Nations Code of Conduct for Law Enforcement Officials (Article 5); Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (Principle 6); Standard Minimum Rules for the Treatment of Prisoners (1957 as amended in 1977) art. 31; Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1975); Code of Conduct for Law Enforcement Officials (1979) - Principles of Medical Ethics Relevant to the Role of Health Personnel, Particularly Physicians, in the Protection of Prisoners and Detainees against Torture and other Cruel, Inhuman or DegradingTreatment or Punishment (1982); Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985); Basic Principles on the Independence of the Judiciary (1985); Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) (1987); Body of Principles for the Protection of all Persons under any Form of Detention or Imprisonment (1988); Basic Principles for the Treatment of Prisoners (1990); Basic Principles on the Role of Lawyers (1990); Guidelines on the Role of Prosecutors (1990); Rules for the Protection of Juveniles Deprived of their Liberty (1990); Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions (1990); Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishments (1982).; Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990), Principles 7, 8; Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care (1991) Declaration on the Protection of All Persons from Enforced Disappearance (1992)
  2. Universal Declaration of Human Rights, Article 5; The International Covenant on Civil and Political Rights, Article 7; Common Article 3 of the four Geneva Conventions of 1949 (prohibiting torture in all armed conflicts) + Additional Protocols I and II; The Rome Statute of the International Criminal Court (ICC), Articles 7-8.; Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991(1993), Grave breaches of the Geneva Conventions of 1949 (b), Art. 5; Statute of the International Tribunal for Rwanda (1994), Article 3.; European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 3; American Convention on Human Rights, Article 5; Inter-American Convention to Prevent and Punish the Crime of Torture, Article 2; Charter of fundamental rights of the EU (article 4)
  3. Office of the United Nations High Commissioner for Human Rights, Human Rights Fact Sheet: No. 4 Combating Torture, at 34 (May 2002)
  4. Arts. 13, 14 CAT
  5. For more information about article 2 CAT, refer to Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment, General Comment No. 2, Implementation of article 2 by State Parties, at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G08/402/62/PDF/G0840262.pdf?OpenElement
  6. Redress, Not Only the States: Torture by Non State Actors. Toward Enhanced Protection, Accountability and Effective Remedies, at http://www.redress.org/downloads/publications/Non%20State%20Actors%209%20June%20Final.pdf
  7. Common Article 3 of the Geneva Conventions available at http://www.icrc.org/ihl.nsf/WebART/365-570006?OpenDocument
  8. Article 7 Rome Statute available at http://www.icc-cpi.int/NR/rdonlyres/EA9AEFF7-5752-4F84-BE94-0A655EB30E16/0/Rome_Statute_English.pdf
  9. The Definition of Torture: Proceedings of an Expert Seminar. Association for the Prevention of Torture. November 10-11, 2001.
  10. Prosecutor v. Zenjil Delalic et al, Case no. IT-96-21-T, 16 November 1998, See also Prosecutor v. Furundjia, Case no. IT-95-17/1-T, 10 December 1998
  11. Velasquez Rodriguez v. Honduras, (1988) Inter-Am.Ct.H.R. (Ser C) No.4
  12. Velasquez Rodriguez v. Honduras, (1988) Inter-Am.Ct.H.R. (Ser C) No.4, www.merriam-webster.com/netdict/intent
  13. Selmouni v. France, Application n. 25803/94, 28 July 1999, par. 87, available at http://www.unhcr.org/refworld/publisher,ECHR,,MAR,3ae6b70210,0.html
  14. Eur. Court HR, Case of Ireland v. the United Kingdom, judgment of 18 January 1978, Series A, No. 25, p. 66, para.167
  15. http://www.essex.ac.uk/torturehandbook/handbook/part_i_3.htm#pti_3_3_1
  16. Communication No. 759/1997, G. Osbourne v. Jamaica (Views adopted on 15 March 2000), in UN doc. GAOR, A/55/40 (vol. 11), p. 138, para. 9.1
  17. I-A Court HR, Cae of Loayza Tamayo v. Peru, Judgment of September 17, 1997, in OAS doc. OAS.Ser.L/V/III39, doc 5, Annual Report of the Inter-American Court of Human Rights 1997, p. 211, para. 57
  18. Human Rights Committee, General Comment n°20, §5.
  19. Report of the Special Rapporteur on torture, UN Doc. E/CN.4 / 1988/17 par. 42, at http://ap.ohchr.org/documents/E/CHR/report/E-CN_4-1988-17.pdf. See also E/CN.4/1993/26, par 593, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G93/100/97/PDF/G9310097.pdf?OpenElement. For further lectures, Amnesty International, Fair Trials Manual, Chapter 25, Punishments available at http://www.amnestyusa.org/international_justice/fair_trials/manual/25.html
  20. The Standards are available at http://www2.ohchr.org/english/law/treatmentprisoners.htm
  21. Social Council Resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977.
  22. 24 Standards Minimum Rules for the Treatment of Prisoners.
  23. Standards Minimum Rules for the Treatment of Prisoners, Article 31
  24. Committee Against Torture, General Comment n°2, CAT/C/GC/2, §§8-9
  25. Article 1(2) CAT: “This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application”
  26. Andrew Clapham, Human Rights Obligations of Non-State Actors, Oxford, 2006, p. 528-29
  27. Article 204: “Est considéré comme torture tout acte par lequel une douleur ou des souffrances aiguës, physiques ou mentales sont intentionnellement infligées à une personne aux fins notamment d’obtenir d’elle ou d’une tierce personne des renseignements ou des aveux, de la punir d’un acte qu’elle ou une tierce personne a commis ou est soupçonnée d’avoir commis, de l’intimider ou de faire pression sur elle ou d’intimider ou de faire pression sur une tierce personne, ou pour tout autre motif fondé sur une forme de discrimination quelle qu’elle soit, lorsqu’une telle douleur ou de telles souffrances sont infligées par un agent public ou toute autre personne agissant à titre officiel ou à son instigation ou avec son consentement exprès ou tacite. Ce terme ne s’étend pas à la douleur ou aux souffrances résultant uniquement de sanctions légitimes, inhérentes à ces sanctions ou occasionnées par elles.” Article 205: Quiconque soumet une personne à des tortures ou autres traitements cruels, inhumains ou dégradants, est puni de la servitude pénale de dix à quinze ans et à une amende de cent mille à un million de francs. Article 206: L’infraction est punie de la servitude pénale de vingt ans lorsqu’elle est commise: 1) Sur un mineur de moins de dix-huit ans ; 2) Sur une personne vulnérable en raison de son âge , de son état de santé, d’une infirmité, d’une déficience physique ou psychique ou d’un état de grossesse ; 3) Sur un témoin, une victime ou une partie civile, soit pour l’empêcher de dénoncer les faits, de porter plainte ou de déposer en justice, soit en raison de sa dénonciation de sa plainte ou de sa déposition; 4) Par plusieurs personnes agissant en qualité d’auteurs ou de complices; 5) Avec usage ou menace d’une arme. Article 207: Le coupable est puni de vingt ans de servitude pénale lorsque la torture et autres peines ou traitements cruels, inhumains ou dégradants ont entraîné une mutilation ou une infirmité permanente ou lorsqu’elle est accompagnée d’agression sexuelle. Il est puni de la servitude pénale à perpétuité lorsqu’elle a entraîné la mort de la victime. Article 208: Aucune circonstance exceptionnelle, quelle qu’elle soit, qu’il s’agisse de l’état de guerre ou de menace de guerre, d’instabilité politique intérieure ou de tout autre état d’exception, ne peut être invoqué pour justifier la torture et autre peine ou traitements cruels ou inhumains ou dégradants. L’ordre d’un supérieur ou d’une autorité publique ne peut être invoqué pour justifier la torture. Article 209: Les peines prévues aux articles 205, 206, et 207 sont incompressibles. Le juge prononce, en plus des peines principales, l’interdiction d’exercer la fonction à l’occasion de laquelle la torture a été pratiquée, sans préjudice d’autres peines complémentaires prévues par le présent code.
  28. Joint Cambodian NGO Report on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in the Kingdom of Cambodia. Presented to the UN Committee Against Torture (CAT) prior to Cambodia’s second periodic report at the 45th session of CAT, held in Geneva from 1 to 19 November 2010, October 2010, available at http://www.sithi.org/temp.php?url=media_view.php&mid=3260&publication=1&
  29. Joint Cambodian NGO Report on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in the Kingdom of Cambodia. Presented to the UN Committee Against Torture (CAT)