A/HRC/45/CRP.11 43. International criminal law recognizes imprisonment or other severe deprivation of physical liberty as a crime against humanity, where it is committed as part of a widespread or systematic attack against any civilian population.41 44. Article 44 of the Venezuelan Constitution also protects against arbitrary detention 42 and requires that a person deprived of liberty be brought before a judge within 48 hours. This requirement is reiterated in article 236 of the Criminal Procedure Code. 43 The Venezuelan Criminal Code punishes arbitrary detention with a maximum penalty of three and a half years,44 which can be increased to five with aggravating circumstances, 45 including threats, violence or any other coercion. Torture and other Cruel, Inhumane or Degrading Treatment 45. Torture and cruel, inhuman or degrading treatment is prohibited under international human rights law.46 The prohibition is absolute and can never be subject to derogation or exception.47 46. Torture is defined as acts that cause severe pain or suffering, whether physical or mental. These acts should be inflicted intentionally; and involving a public official, either directly or indirectly.48 To constitute torture the acts must be committed for a specific purpose, such as extracting a confession, obtaining information, punishment, intimidation, humiliation, coercion or any reason based on discrimination. 49 47. The Convention against Torture (CAT) does not contain a definition of cruel, inhuman or degrading treatment, which is thus defined by its distinction from torture, according to article 1 of the CAT.50 Among the elements that can be taken into account to determine the threshold between the two are the severity of the conduct, the intention of the perpetrator, the purpose of the ill-treatment and the powerlessness of the victim.51 48. Under the CAT, states have a positive obligation to take effective measures to prevent all acts of torture and cruel, inhuman, or degrading treatment or punishment and to investigate promptly any allegation of such treatment.52 They also have an obligation to either prosecute or extradite any individual alleged to have committed any act of torture who may be present 41 42 43 44 45 46 47 48 49 50 51 52 10 Article 7, paragraph 1 (e), of the Rome Statute of the International Criminal Court. The ICC Elements of Crimes require that the gravity of the conduct was such that it was in violation of fundamental rules of international law and that the perpetrator was aware of the factual circumstances that established the gravity of the conduct. Article 44 (1): “No person can be arrested or detained except by virtue of a judicial order, unless caught in flagrante. In this case, it will be brought before a judicial authority in a time no longer than forty-eight hours from the moment of arrest”. Article 236 (3): “Within forty-eight hours following the apprehension, the accused will be brought before the Judge, for the presentation hearing”. Criminal Code, art. 176. Criminal Code, art. 175. UDHR, art. 5; ICCPR, art. 7 and 10; CAT; CRC art. 37(a); Inter-American Convention to Prevent and Punish Torture, which Venezuela ratified in 1991. ICCPR, art. 4(2); CAT, arts. 2(2) and (3). CAT, art. 1. These purposes of torture are expressly listed in CAT, art. 1. See also A/HRC/13/39/Add.5, paras. 35 and 58-71. See CAT, art. 16. A definition of cruel, inhuman or degrading treatment is contained in article 5 (3) and (4) of the 2013 Special Law to Prevent and Sanction Torture and other Cruel, Inhuman or Degrading Treatment (see footnote 59). For a non-exhaustive list of acts that can be considered as amounting to torture, see A/HRC/13/39/Add.5, paras. 50-57. For CIDT, see paras. 186 ff. According to former UN Special Rapporteur on Torture, Manfred Novak, the systematic and historical interpretation of articles 1 and 16 CAT suggest that the decisive criteria for distinguishing CIDT from torture are the purpose of the conduct, the intention of the perpetrator and the powerlessness of the victim – rather than the intensity of the suffering inflicted. See A/HRC/13/39/Add.5, para. 188. CAT, arts. 2, 12 and 16.