| ?lt;/td> | UN Convention Against Torture (UNCAT) | Hong Kong (U.K. made notification that the UNCAT applied to Hong Kong from 9 Dec 1992) | Sri Lanka (ratified on 3 Jan 1994) | Indonesia (ratified on 28 Oct 1998) |
Source | Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (1984) | The Crimes (Torture) Ordinance Chapter 427 (Enacted 1993) and other relevant ordinances | Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment Act, No. 22 of 1994. | Law No. 39 of 1999 on Human Rights |
Definition of Torture | Art 1: 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. | Section 3(1): Severe pain or suffering inflicted intentionally on someone in the performance or purported performance of official duties. | Art 12: any act which causes severe pain, whether physical or mental, to any other person, done for the purposes to obtain any information or confession from, or punish or intimating such other person or a third person, or done for any reason based on discrimination. | Art 1(4): Any activity which is undertaken intentionally so as to cause someone severe pain of suffering, whether physical or mental, in order to obtain a confession or information from that person or a third person, punishing him for any 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. UN Committee against Torture, Conclusions and Recommendations: the penal legislation does not adequately define the offence of torture in terms consistent with article 1 of the CAT; as a result, torture is not punishable by appropriate penalties in the criminal code. |
Who can inflict torture? | Art 1: The pain of suffering should be 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. | Section 3(1): A public official or person acting in an official capacity or any person with consent or acquiescence of a public official or any other person acting in an official capacity. Section 3(2): In addition to Section 3(1), a person commits the offence of torture if (a) in Hong Kong or elsewhere he intentionally inflicts severe pain or suffering on another at the instigation or with the consent or acquiescence of a public official or any other person acting in an official capacity; (b) the official or other person is performing or purporting to perform his official duties when he instigates the commission of the offence or consents to or acquiesces in it. | Art 12: A public officer or other person acting in an official capacity. Or any person acts at the instigation of, or with consent or acquiescence of a public officer or other person acting in an official capacity. Art 2(2): And the above described person attempted to commit, aid and abet in committing or conspire to commit. | Art 39: A public official or other person acting in an official capacity who inflicts the pain or suffering by or at the instigation or with consent or acquiescence. |
When does the State Party have jurisdiction? | Art 5: a. (Territorial jurisdiction) When the act of torture is committed in any territory under its jurisdiction or on board of a ship or aircraft registered in that State. b. (Objective jurisdiction) When the alleged offender is a national of that State. c. (Subjective jurisdiction) When the victim is a national of that State. | Section 3(1): When the offence of torture is committed in Hong Kong or elsewhere. And the nationality of the perpetrator or the victim is immaterial. | The Magistrate Court and the High Court have jurisdiction over all criminal offences, including torture committed within the territory of Sri Lanka. Art 4 of CAT Act: The High Court is to have jurisdiction over acts of torture committed outside the territory of Sri Lanka in cases where: - The offender is in Sri Lanka or on board a ship or aircraft registered in Sri Lanka;
- The alleged offender is a citizen of Sri Lanka;
- The alleged victim is a citizen of Sri Lanka.
| - Art 2 of the Penal code: The Indonesian statutory penal provisions are application to any person who is guilty of a punishable act within Indonesia.
- Art 3 of the Penal Code: The Indonesian statutory penal provisions are applicable to any person who is guilty of a punishable act outside Indonesia on board an Indonesian vessel or aircraft.
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Victims?right to complain ?lt;/p> | Art 13: Persons who allege to have been subjected to torture have the right to complain to the competent authorities, and the right to have their cases promptly and impartially examined. State Parties shall take steps to protect complainants and witnesses against all ill-treatment or intimidation. | Although the power to arrest and detain a person alleged to have participated in an act of torture rests with the police, all the disciplined forces maintain complaint systems. For example, any person aggrieved by the conduct of a police officer in the execution of his duties may make a complaint to the Complaints Against Police Office, whose subsequent investigations are monitored and reviewed by the Independent Police Complaints Council; and complaints against the Correctional Services Department and its staff by prisons are dealt with by the Complaints Investigation Unit. | Section 109 (1) of the Criminal Procedure Code: Any person can give information relating to the commission of a crime to any police officer or inquirer. If the police officer or inquirer has reason to suspect the commission of a cognisable offence he must send a report to the Magistrate Court or to his own immediate superior and must proceed to investigate the facts and circumstances of the case. For example: complaints against police officers of alleged torture can be made to a special sub-unit under the Senior Deputy Inspector General/ Administration which has been set up for the purpose. | Not mentioned in Law No. 39, but the Government Regulation No. 27 of 1983 on the Implementation of the Law of Criminal Procedure provides for the possibility of complaints to the competent authorities. |
Procedure to be followed | - Art 7: The State Party has responsibility to try or to extradite the person who is alleged to have committed torture
- Art 6: The State Party shall take the person, who is alleged to have committed torture and is present in the State Party’s territory, into custody or take other legal measures to ensure his presence.
- Art 6: Such State shall immediately make a preliminary inquiry into the facts.
- Art 6: The consular representatives of the national state of the person shall be notified.
- Art 12: State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation.
| - Section 4 of Crimes (Torture) Ordinance: Consent of the Secretary of Justice on the proceedings is required.
- The Police Force Ordinance (Chapter 232) provides the power to arrest and detain a person alleged to have participated in an act of torture. Arrested persons detained for questioning shall normally be charged and taken before a magistrates?within 48 hours, or, otherwise, be released and bailed to appear in court or be released without charge.
- The Fugitive Offenders Ordinance and the Fugitive Offender (Torture) Order (Chapter 503I) permit the Hong Kong authorities to surrender persons to State Parties to the CAT for offences of torture.
- According to Article 5 of the Bill of Rights Ordinance, persons arrested or detained for the offence of torture enjoy the protections in Article 9 of ICCPR, including the right to inform and communicate with consulate of the relevant State.
| - A person who is alleged to have committed an offence of torture can be promptly taken into custody without a warrant. According to the general penal law of Sri Lanka, a person suspected of having committed torture, once arrested, must be produced before a magistrate within 24 hours of arrest.
- According to the Criminal Procedure Code, a report of investigation should be forwarded to the Attorney-General’s Department for advice. If the Attorney-General is of view that there is sufficient evidence to proceed against the suspect he will file an indictment in the High Court.
- Section 6 of CAT Act: when a person who is not a citizen of Sri Lanka is arrested for the offence of torture, he is entitled to communicate without delay with the nearest appropriate representative of the nation State.
- Section 7(1) and (2) of CAT Act: Sri Lanka shall respond to extradition request from another State and shall inform other State which has jurisdiction over the offence.
| - Art 89(3) of the Law No. 39: The National Commission of Human Rights has the authority to summon a person who has perpetrated an offence of torture.
- Art 104: The public court, or the human rights when it is established, will adjudicate the crime of torture.
- Subsection 3 of Art 57(2) of the Law of Criminal Procedure (KUHAP): A detained suspect or accused who is a citizen of a foreign country has the right to contact and talk to his consular representative in connection with the case.
- According to the Law No. 1 of 1979 on Extradition, persons suspected of committing torture can be extradited. The CAT can be considered as a basic principle in extradition agreements with other countries.
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Investigation, prosecution and trial of alleged criminal offences | Art 7: Authorities of the State Parties shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State. Persons who are brought in connection with offence of torture shall be guaranteed fair treatment at all stages of the proceedings. | The Bill of Rights Ordinance Articles 5, 6 and 10 to 12 (which correspond respectively to articles 9, 10, 14 and 15 of the ICCPR) regulate investigation, prosecution and trial of alleged criminal offences and the rights of persons charged with or convicted of offence of torture. | Beside Section 7 of the CAT Act, which contemplates the prosecution or extradition of any person who is arrested for an offence under the Act, the Constitution of Sri Lanka guarantees that all persons charged with an offence are entitled to due process of the law. | - Art 10 of the Governmental Regulation introduced in lieu of Law No. 1 of 1999 on Human Right Court: the National Commission on Human Rights shall conduct an investigation of human rights violations.
- The Law No. 8 of 1981 on the Law of Criminal Procedure (KUHAP) specified that in all cases, including offence of torture, the basic principle of the criminal investigation as contained in the Elucidation of Law No. 8 of 1981 must be applied, i.e. the trial process must be conducted in a quick, simple, low-cost, open, honest and impartial manner in all levels of trials.
- Articles 20-29 of the Law of Criminal Procedure (KUHAP): provides the procedures for conducting cases and impartiality.
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Is it a criminal offence? | Yes. Art 4: Each State Party shall ensure that all acts of torture are offences under its criminal law. | Yes. Torture is prohibited under the Crimes (Torture) Ordinance. | Yes. Art 2(5): An offence of torture is within the meaning of the Code of Criminal Procedure | Under the Government Regulation, torture is a criminal offence. But the existing Penal Code does not explicitly include offence of torture (only maltreatment). |
Punishment | Art 4: Each State Party shall make offences of torture punishable by appropriate penalties which take into account their grave nature. | Section 3 of the Crimes (Torture) Ordinance: Imprisonment for life | Art 2(4): Imprisonment not less than 7 years and not exceeding 10 years and a fine not less than 10,000 rupees and not exceeding 50,000 rupees. | Art 8 of the Government Regulation: every official who carried out the act of torture will be punished with capital punishment, life imprisonment or imprisonment for 15 years, and at least 3 years. Art 351 to 357 of the Penal Code (KUHP): prohibit the act of "maltreatment". "Maltreatment shall be punished by a maximum imprisonment of two years and eight months or a maximum fine or 300 rupiahs; if the act results in a serious physical injury, the offender shall be punished with a maximum sentence of five years?imprisonment. |
Admissibility of confession obtained by torture | Art 15: Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made. | Under common law, no statements by person accused of crimes are admissible against them unless they are obtained voluntarily, therefore, confession obtained by torture is inadmissible. | Evidence Ordinance: a confession obtained by any inducement, threat or promise is irrelevant in criminal proceedings in a court of law. | No provision explicitly mentions that confession obtained through torture is inadmissible. Act 117 of the Law of Criminal Procedure (KUHAP): The testimony of a suspect and/ or a witness to an investigator shall be given without pressure from anyone and/ or in any form. |
Medical care and compensation to the victims | Art 14: State Parties shall ensure in its legal system that the victims of torture obtain redress and have an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. If the victim is dead, his dependants shall be entitled to compensation. | Under the Crown Proceedings Ordinance (Chapter 300), a victim of torture may bring an action for damages not only against the official in question but also against the Hong Kong Government. The Criminal Procedures Ordinance empowers the court to order a person who is convicted of an offence of torture to pay to any aggrieved person compensation for personal injury and the loss of or damage to property. | Section 17(4) of the Criminal Procedure Code: A court can, upon conviction of a person of any offence, order the person to pay compensation to any person affected by the offence. | Articles 98 to 101 of Chapter VIII of the Law No. 8 of 1981: where the victim suffered damage because of the criminal act being adjudicated, the chief judge, at the request of the victim, can combine the compensation request with the criminal case. |
