The distinction between torture and cruel, inhuman or degrading treatment

Abstract

The present article seeks to clarify the distinction between torture and cruel, inhuman or degrading treatment. The author argues that the decisive criteria for distinguishing torture from CIDT is not, as argued by the European Court of Human Rights and many scholars, the intensity of the pain or suffering inflicted, but the purpose of the conduct and the powerlessness of the victim and that as such the distinction is primarily linked to the question of personal liberty. He concludes that the "scope of application" of CIDT is a relative concept, that outside a situation of detention and similar direct control, the prohibition of CIDT is subject to the proportionality principle. Here, only excessive use of police force constitutes CIDT. In a situation of detention or similar direct control, however, no proportionality test may be applied. Any use of physical or mental force against a detainee with the purpose of humiliation constitutes degrading treatment or punishment and any infliction of severe pain or suffering for a specific purpose as expressed in Art.1 CAT amounts to torture.