Practice Relating to Rule 90. Torture and Cruel, Inhuman or Degrading Treatment
France’s LOAC Manual (2001) refers to the 1984 Convention against Torture and 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.
In 2005, in its third periodic report to the Committee against Torture, France stated:
9. French legislation does not contain any definition of torture within the meaning of the Convention. However, the Ministry of Justice circular of 14 May 1993 on the new Criminal Code that came into force on 1 March 1994 refers expressly to article 1 of the Convention:
“Generally speaking, there may be qualified as torture within the meaning of article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted at New York on 10 December 1984, ‘any act whereby severe pain or suffering, whether physical or mental, is intentionally inflicted on a person’. It should be noted, however, that the provisions of the new Criminal Code are far wider in scope than those of the Convention, which concern only acts committed by a public official for specified purposes.”
10. Articles 689-1 and 689-2 of the new Code of Criminal Procedure that came into force on 1 March 1994 together give French courts jurisdiction to prosecute and try anyone in France who has committed torture outside French territory. Article 689-2, indeed, refers to the definition in article 1 of the Convention:
“For the purposes of the application of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment adopted at New York on 10 December 1984, any person guilty of torture within the meaning of article 1 of the Convention may be prosecuted and tried under the conditions stated in article 689-1.”
51. As already stated, acts of torture are classified as a distinct crime by article 222-1 of the new Criminal Code that came into force on 1 March 1994. Under the previous Code, they merely constituted an aggravating circumstance in connection with certain offences. The first paragraph of the new article 222-1 provides that “the subjection of persons to torture or to acts of barbarity shall be punishable by 15 years’ rigorous imprisonment”.
52. The classification of torture and acts of barbarity as a crime has eliminated shortcomings in the punishment of torture. Before the new provisions came into effect, how violations of the person were classified depended directly on the degree of injury. Now what counts is that such violations are inherently serious, irrespective of their outcome. In particular, a person may now be prosecuted for attempted voluntary injury; that was not the case before. The result is that nowadays attempted mutilation may be classified as attempted torture.
53. Moreover, article 222-3 of the new Criminal Code, which enumerates aggravating circumstances relevant to torture and acts of barbarity, refers expressly to the commission of such acts by public officials:
“The offence defined in article 222-1 shall be punishable by 20 years’ rigorous imprisonment if committed:
7. In or in connection with the performance of his/her functions or duties by a person vested with public authority or a public servant;”
Should a public official commit acts of torture on instructions from representatives of the “lawful authorities”, article 122-4 of the new Criminal Code precludes his/her exoneration if the acts are “manifestly unlawful” – as would, clearly, be the case.
54. The new provisions of the Criminal Code concerning torture are also applicable to members of the armed forces. That is so pursuant to article 27, paragraph 1, of Act No. 72-662 of 13 July 1972, which states that “members of the armed forces are subject to the provisions of ordinary criminal law and to those of the Code of Military Justice”. In addition, article 441 of the Code of Military Justice punishes incitement to commit acts that are contrary to duty or to discipline.
55. Articles 121-4 to 121-7 of the new Criminal Code make attempted torture and complicity in torture punishable in the same way as torture itself: ...
225. Other acts of cruel, inhuman or degrading treatment or punishment are covered in France by the charges applicable to torture. The information given above relating to torture generally thus also applies to them.