A/HRC/13/39 torture has been inflicted, it is a very serious crime against a human being, who most likely will suffer from its consequences for the rest of his or her life, either physically or mentally. According to the definition contained in the Convention against Torture, four elements are needed in order for an act to be qualified as torture: firstly, an act inflicting severe pain or suffering, whether physical or mental; secondly, the element of intent; thirdly, the specific purpose; and lastly, the involvement of a State official, at least by acquiescence. 44. Only acts which cause severe pain or suffering qualify as torture. Severity does not have to be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily functions or even death.3 Another element which distinguishes torture from cruel, inhuman or degrading treatment or punishment is the powerlessness of the victim. Torture is predominantly inflicted on persons deprived of their liberty in any context and therefore rendered particularly vulnerable to abuse. B. Context that allows torture to happen 1. Impunity 45. The magnitude of impunity has been one of — if not the most — disappointing findings of his tenure as Special Rapporteur. Impunity is almost total in most countries he has visited, despite undeniable, sometimes routine, widespread or even systematic practices of torture and in contravention of the clear obligation under the Convention against Torture to hold perpetrators of torture accountable under criminal law. As soon as there is a suspicion of torture or an explicit allegation, a thorough investigation should be initiated immediately or without any delay.4 It therefore has to be ensured that all public officials, in particular prison doctors, prison officials and magistrates who have reasons to suspect an act of torture or ill-treatment do report ex officio to the relevant authorities for proper investigation in accordance with article 12 of the Convention against Torture.5 Moreover, whereas the decision on whether to conduct an investigation should not be discretionary, but rather an obligation irrespective of the filing of a complaint,6 this is too often not the case. In addition, the lack of criminalization of torture and the mostly inadequate sanctions are the main factors contributing to impunity. 46. Very frequently, national criminal codes contain provisions outlawing several offences which are similar to torture, such as the infliction of bodily injuries, battery, duress, or wilful violence, etc. While all these offences may be part of a form of torture, none covers all elements contained in the definition of article 1 and all therefore fall short of providing comprehensive protection of physical and psychological integrity. This highlights the prevalence of fundamental misconceptions about the elements and the nature of torture and a lack of sensitivity to the overall issue. Often the definition of torture relates 3 4 5 6 GE.10-10042 See E/CN.4/2006/6. See also M. Nowak and E. McArthur, The UN Convention against Torture – A commentary (Oxford University Press, 2008). This corresponds also to the meaning of “promptly” in arts. 9 and 14 of the International Covenant on Civil and Political Rights: cf. M. Nowak, UN Covenant on Civil and Political Rights. CCPRCommentary (Kehl, Engel, 1993), pp. 210–240, pp. 302–357. See also Nedyibi v. Austria, communication No. 8/1991, para. 15; M’Barek v. Tunisia, communication No. 60/1996, paras. 11.5– 11.7; in Blanco Abad v. Spain (Committee against Torture, communication No. 59/1996), a delay of two weeks is already decided to be a violation of art. 12. See, e.g., the report on the mission to Sri Lanka (A/HRC/7/3/Add.6, para. 94 (f)). See, e.g., CAT/C/SR.145, para. 10 and SR.168, para. 40. See also the Committee against Torture, concluding observations on the third periodic report of France, CAT/C/FRA/CO/3, para. 20 and communication No. 59/1996, para. 8.2. 11