A/HRC/40/59
40.
Furthermore, corruption may foreseeably cause or contribute to the exposure of
persons to torture and cruel, inhuman or degrading treatment through misallocation,
misappropriation, diversion or depletion of financial or other resources allocated to key
public services. For example, in his daily work for the mandate, the Special Rapporteur has
observed a widespread practice of embezzling resources allocated to safeguarding humane
detention conditions, including adequate infrastructure and staffing of detention facilities;
appropriate training, equipment and remuneration of staff; and the provision of basic
commodities and services to inmates such as food, water, heating, repair, laundry, hygiene,
health care and educational and recreational opportunities.
41.
Even where such corrupt practice does not deliberately aim to cause pain or
suffering, it foreseeably downgrades conditions of detention to levels that may be cruel,
inhuman or degrading. Moreover, the resulting shortage of prison staff and equipment
almost inevitably triggers situations or practices conducive to violence and abuse, such as
the inability of the remaining staff to ensure a safe and orderly management of facilities in
line with the legitimate needs of the inmates and the de facto delegation of internal
discipline to dominant inmates and heads of cells. Although these causal effects may not be
purposefully intended or desired by the perpetrators, they are reasonably foreseeable by
them as part of the ordinary course of events and, therefore, must be regarded as intentional
for the purposes of State and individual accountability.
42.
The negative impact of corruption on the effective implementation of the prohibition
of torture and ill-treatment applies both to “grand” and to “petty” corruption but, as a
general rule, disproportionately affects persons in vulnerable situations such as persons
deprived of their liberty; members of social minorities and indigenous groups; irregular
migrants or other non-nationals; persons with physical or mental disabilities, illnesses or
substance dependence; lesbian, gay, bisexual, transgender and intersex persons; and,
depending on the context, children, women and older persons and similar groups exposed to
marginalization and discrimination. For example, the Committee on the Elimination of
Discrimination against Women has highlighted that a prevalence of corruption in police
stations acts as a systemic barrier to effectively addressing violence against women
(CEDAW/C/UGA/CO/7, para. 23), also affirming the broad and diffuse capacity of
corruption to obstruct the prevention of torture and ill-treatment.
43.
In this pattern, corruption is the primary driver for torture and ill-treatment,
particularly in conjunction with a permissive environment conducive to abuse and
impunity. The manifestation of torture and ill-treatment as a “side effect” of corruption
cannot effectively be addressed through anti-torture measures alone. Accordingly, the
obligation to take effective measures for the prevention of torture and ill-treatment can be
said to include a duty to take comprehensive and decisive action for the eradication of the
corrupt practices and corrupt environments conducive to such abuse.
6.
Torture or ill-treatment and corruption as foreseeable “side effects” of other policies
and practices
44.
Even policies, laws and practices which do not, in themselves, constitute or involve
acts of corruption or of torture and ill-treatment can be instrumental in exposing persons to
various combinations of corruption and torture or ill-treatment. Indeed, States’ failure to
prevent corruption or torture and ill-treatment can often be traced to high-level policies and
decisions that do not deliberately aim to facilitate corruption or torture and ill-treatment but
may concern a wide range of issues, such as the conclusion or denunciation of international
agreements, memorandums of understanding or soft-law instruments; the criminalization or
decriminalization of certain conduct and the systematic incarceration of certain persons; the
allocation of resources and the introduction of budget cuts; the organization of institutions
and the delivery of public services; the structure and practice of law enforcement and
criminal justice systems; and, more generally, the policies and practices adopted in contexts
OHCHR, Forced Evictions, Fact Sheet No. 25/Rev.1 (2014), p. 4; and David Hess, “Business,
corruption, and human rights: towards a new responsibility for corporations to combat corruption”,
Wisconsin Law Review, vol. 2017, No. 4, pp. 641–693, at pp. 667–669.
12
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