What is torture?

Article 1 of the Convention Against Torture, which has been incorporated into IRPA, defines torture as follows:

According to the U.N. General Assembly’s Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of December 9, 1975 at Article 1:

(2) Torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment.

Examples of torture

The European Court of Human Rights found the following treatment to constitute torture:

• “Palestinian hanging”: the applicant was stripped naked and suspended by his arms that had been tied together behind his back, resulting in severe pain and in paralysis in both arms that lasted for some time. Aksoy v. Turkey, 18 Dec 1996.
• Rape in custody. Aydin v. Turkey, 25 Sept 1997.
• Beatings that kept the applicant in a constant state of physical pain and mental anguish over a three-day period while she was blindfolded. She was also paraded naked and pummelled with high-pressure water while being spun around in a tire. The Court held that the cumulative effect of this treatment amounted to torture (although not necessarily the beatings alone). Aydin v. Turkey, 25 Sept 1997.
• In the cases of Ireland v. United Kingdom, 13 Dec 1977, and Tomasi v. France, 27 Aug 1992, the European Human Rights Court concluded that beatings while in custody constituted inhuman or degrading treatment, but not torture. The Court revisited this issue in 1999 and noted that the European Convention is a living instrument that must be interpreted in light of current conditions. Acts that were not classified as torture in the past could be so classified in the future because of an increasingly high standard set for the protection of human rights. The Court concluded that a severe beating that inflicted a large number of blows and caused substantial pain constitutes torture. Selmouni v. France, 28 Jul 1999.
• The following techniques used by the Greek military junta: mock executions, death threats, electric shock, the use of insulting language, being compelled to be present at the torture or cruel, inhuman or degrading treatment of relatives or friends [Denmark et al. v. Greece (3321- 3/67; 3344/67 Report: YB 12 bis)].
• The following techniques when used in combination by British Security Forces in Northern Ireland against detainees: being forced to stand for long periods of time, hooding, subjection to noise, deprivation of sleep, food and drink [Ireland v. United Kingdom].
• The infliction of mental suffering through the creation of a state of anguish and stress by means other than bodily assault (e.g., threatening to kill or hurt family members) [Ireland v. United Kingdom, supra].
• Beatings in police custody. The requirements of the investigation and the undeniable difficulties inherent in the fight against crime, particularly with regard to terrorism do not change the nature of torture [Tomasi v. France, judgment of 27 August 1992 (Series A, no. 241)].

Grounds for torture

There is no need to demonstrate that the applicant would face torture for one of the five enumerated grounds set forth in the refugee definition. The 1951 Refugee Convention requires that the fear of persecution be based on specified grounds (i.e., race, religion, nationality, membership of a particular social group or political opinion). Under the Convention against Torture, however, the sole question is whether there is a substantial risk of torture, regardless of whether it is based on any of the grounds specified in the definition of Convention refugee.

Agent of torture

An important element of the definition of torture is that the pain or suffering amounting to torture must 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. However, the risk of torture need not be from the State government itself, and may arise, for instance, from an errant police force, the military or quasi-public actors (e.g. tribes responsible for enforcing locally accepted customs, particularly in countries where the rule of law is non-existent).