A/HRC/52/30 11 States in the Asia-Pacific,46 36 States members of the Council of Europe,47the Russian Federation and 18 States in Latin America and the Caribbean48 all recognize torture as an explicit crime. Not all of these autonomous crimes are fully in line with article 1 of the Convention against Torture and calls for further amendments. 37. In addition to criminalizing torture, the right to lodge a complaint against maltreatment must be established in domestic law.49 Prison, military, intelligence, security, immigration and other legislation covering places where people are deprived of their liberty or where powers of arrest are exercised must enshrine a right to complain and must establish impartial procedures for receiving complaints and carrying out investigations. 50 State officials who raise alarm and report cases of torture must be given protection under whistleblower legislation against retaliatory prosecution or other measures. The powers, authority and procedures of investigative bodies must be regulated. 38. Establishing an indictable offence of torture in domestic criminal or penal codes is a primary obligation. Any delays in doing so interfere with the implementation of other obligations under the Convention against Torture.51 At a minimum, the offence of torture shall be aligned with the elements defined in article 1 of the Convention, the most widely accepted definition. State practice to criminalize torture in alignment with article 1 and as an autonomous crime points to an emerging customary norm.52 39. Arguments put forward by a few States that article 4 of the Convention against Torture does not demand a separate “crime” of “torture” but only requires that “acts of torture” be captured and prosecuted under other forms of criminality is not supported by an ordinary reading of article 4, the travaux préparatoires53 nor backed up by extensive State practice to the contrary. Investigating and prosecuting cases of torture under ordinary offences, such as assault or abuse of authority, may serve to avoid total impunity, however this strategy fails to reflect the cruelty inflicted by torture, the gravity of the offence, the responsibility of public officials and does not deliver adequate penalties. Further, these common crimes almost always lack one or more elements of the definition of torture in article 1 of the Convention, and otherwise downplay or, either purposefully or inadvertently, obscure or hide the reality of torture, and in doing so foster impunity. While the offence of abuse of authority may be tried simultaneously with the crime of torture, the former is commonly used as the basis for economic crimes of financial mismanagement, fraud or corruption or for neglect or deviance of duty, the penalty for which is often removal from office or a fine. Defences of reasonable justification are generally permitted in respect of offences of abuse of authority. Specifically for sexual offences, which are disproportionately perpetrated against women, ordinary crimes often carry lower penalties in comparison to acts punishable as torture. This suggests discriminatory treatment of female (and potentially other) victims of sexual torture. The Committee against Torture has noted: “Codifying this crime will also (a) emphasize the need for appropriate punishment that takes into account the gravity of the offense; (b) strengthen 46 47 48 49 50 51 52 53 GE.23-03126 Australia, Cambodia, Lao People’s Democratic Republic, Maldives, Mongolia, Nauru, Nepal, New Zealand, Philippines, Thailand and Timor-Leste. Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina [partly], Croatia, Cyprus, Czechia, Estonia, Finland, France, Georgia, Greece, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Montenegro, Netherlands, North Macedonia, Norway, Portugal, Republic of Moldova, Romania, Serbia, Slovak Republic, Slovenia, Spain, Türkiye, Ukraine and United Kingdom of Great Britain and Northern Ireland. Information for San Marino was not available. Antigua and Barbuda, Argentina, Belize [limited to torture of prisoners], Bolivia (Plurinational State of), Brazil, Canada, Chile, Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Panama, Paraguay, Peru and Venezuela (Bolivarian Republic of). Human Rights Committee, general comment No. 20 (1992), para. 14. United Nations Office on Drugs and Crime (UNODC), Incorporating the Nelson Mandela Rules into National Prison Legislation: A Model Prison Act and Related Commentary (2022), part two, in particular arts. 43–45. Belgium v. Senegal, paras. 75–76. See https://ihl-databases.icrc.org/en/customary-ihl/v1. Defence and military codes have not been reviewed for the present report. See M. Novak et al., The United Nations Convention Against Torture and its Optional Protocol: A Commentary (2nd ed., Oxford University Press, 2019), on article 4. 9