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History of Torture
Torture is the deliberate infliction of physical and psychological pain with the purpose of obtaining information or extorting a confession from the victim and thus enabling a conviction; it can also be the penalty itself. The systematic use of torture in criminal procedures dates back to the earliest civilisations. Scenes depicting torture and corporal punishment can be found on ancient Mesopotamian and Egyptian monuments. The first records of the legal application of torture to prove guilt or innocence were found in the Sumerian Code of Ur-Nammu (ca 21st century bc) and the Babylonian Code of Hammurabi (ca 18th century bc) which in the evidentiary procedure employed the so-called ‘divine judgement’ of the water-ordeal. Both Codes were founded on the theocratic idea of law that invokes divine authority and interprets the laws as the will of the gods, which all people have to obey. The judiciary of Ancient Greece, in the period of Plato and Aristotle, introduced ‘nature’ as the new foundation of law. The Greeks considered the laws to be man-made and introduced the notion of ‘equity’ as the foundation of ‘good’ law. In addition to laws, customs, testimonies and oath-giving, torture was also employed in evidentiary proceedings. Torture was reserved for slaves, whose words were considered to be of no moral value: since torture served to determine the truth, a confession obtained in this way was considered true.
During the Roman Republic, only slaves and foreigners, as in Ancient Greece, could be subjected to torture.
Although the use of torture was limited through legal regulation and was justified as a means to determine the truth and not as a form of punishment, its employment in practice soon breached legal limitations. Torture was applied even if there was no substantial evidence and its use expanded from grave crimes to small offences against property. The use of torture spun completely out of control in the campaign of the Inquisition against heresy, cases of witchcraft and political crimes, becoming the principal means to extort confession. The records of trials conducted throughout Europe in the 16th and the 17th century testify to the numerous tragic verdicts reached on the basis of confessions extorted by excruciating methods of torture. Many of those trials ended with capital punishments. The Age of Enlightenment in the 18th century brought changes to all processes of society, including legal science. As well as by the Enlightenment ideas of Voltaire, Rousseau and Montesquieu, changes to trial procedures were also influenced by the work of Cesare Beccaria, Italian criminologist, jurist, philosopher and politician. His treatise On Crimes and Punishments (1764) marks the beginning of modern criminal law. Advocating the principle of respect for the human rights of the accused, Beccaria in his treatises argues for public trials and opposes torture and the death penalty.
He believes that the criminal justice system should aim at the prevention of crime instead of punishment and that the improvement of living conditions would lead to decline in crime. Beccaria’s On Crimes and Punishments contributed to the abolition of torture. Prussia was the first country to abolish torture in 1740, followed by Austria in 1776 and France in 1789. At the beginning of the 19th century, European legislation no longer used torture as a legal instrument in trial procedures. Unfortunately, this was short lived. At the beginning of the 20th century, with national socialist and revolutionary ideas, human and civil rights were pushed out by the rights of nations and the revolution. Consequently, torture began to be employed against the ‘enemies of the revolution’ in the Soviet Union and China, as well as against the ‘enemies of the political order’ in fascist Germany and other nations of the Axis power. Secret civil and military police forces largely contributed to the use of torture, having tortured political dissidents, spies and prisoners of war. The citizen’s individual rights were subordinated to ‘higher causes’ and limited by restriction or complete loss of political freedom. In such circumstances all means were permissible for the sake of a ‘higher and more important cause’; hence the use of torture found a fertile ground due to fear and insecurity. In addition to the old instruments of torture, sites for mass torture and execution were introduced in Nazi concentration camps and Stalin’s gulags. There is practically no country in Europe, the Americas or Asia that in the period during and after World War II did not have camps in which ‘those who were different’ were imprisoned and tortured. International human rights and humanitarian organisations began to react to this systematic and unrestricted use of repression.
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In the inquisitorial procedure a judge or a group of judges actively investigate the case, in order to declare the verdict and decide on the potential penalty. The accused could be convicted only if he acknowledged his guilt in the presence of two honourable witnesses.
They denounced countries all around the world for the tremendous sufferings inflicted on civilians and the devastation caused by war and called upon them to return to the ethical principles of the Enlightenment period and to the famous Declaration of the Rights of Man and of the Citizen of 1789. These efforts resulted in the adoption of the Universal Declaration of Human Rights of the un in 1948, extremely important for the condemnation of torture.
A number of acts for the protection of human rights were adopted at the initiative of the Council of Europe; the most significant among them is the Convention for the Protection of Human Rights and Fundamental Freedoms, adopted in Rome in 1950. The International Covenant on Civil and Political Rights was adopted by the United Nations General Assembly in 1966. International non-governmental organisations for protection of human rights, including Amnesty International, contributed with their work to the creation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (commonly known as the United Nations Convention against Torture), adopted by the un General Assembly in 1984. Prohibiting the use of torture in any circumstances, the Convention became an integral part of the national legislation of all States Parties, regardless of their judicial system. The States Parties are required to take effective measures to prevent and criminalize any act of torture in any territory under their jurisdiction. This also led to the international public condemnation of the post-war use of torture employed by France in Algeria in the period between 1954 and 1962 and by the Greek military junta of 1967-74. The Parties are also obliged to extradite or prosecute in territory under their jurisdiction every person suspected of torture, regardless of where the alleged torture took place. This regulation allowed the United Kingdom to arrest and detain the Chilean dictator Pinochet in 1998. The un established the Committee against Torture in 2002, a body of independent human rights experts that monitor implementation of the Convention against Torture by its States Parties. The monitoring is aimed at encouraging changes, public condemnation following only if the changes have not been implemented. Croatian legislation follows the above mentioned conventions: abuse is prohibited by section 23 of the Constitution of the Republic of Croatia. Any act of extorting statements and any abuse in the exercise of public authority is considered a criminal offence.
Any statement obtained by force, threat or any other means used to extort confession is considered to be illegal evidence. In spite of numerous laws and legal regulations, police and military forces in many countries continue to use torture, calling upon the ‘last resort’ principle, according to which torture used to obtain information represents a lesser evil when compared to preventing a greater one. Such a relativised notion of torture came to the fore particularly after the September 11 attacks in 2001 and the leak of classified files revealing the inhumane treatment of the prisoners at the Guantanamo Bay detention camp and the vengeance wreaked by American soldiers on prisoners in the Iraqi prison Abu Ghraib. The international community also condemned the us Government’s attempt to approve the use of method of waterboarding in interrogating prisoners, also known as the torture of simulated drowning. The United States denied the procedure contained any of the elements of torture. After its use for centuries in penalty and evidentiary procedures, in all types of societies – from tribal to highly civilised communities, today it is very difficult to justify the effectiveness and reasonability of torture. Notwithstanding the numerous tortures and horrendous acts of execution that were often performed in public as a form of warning to others, crime has remained a permanent part of human nature. But contemporary society should respond to this darker side of its nature only with humane solutions.
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International non-governmental organisations for protection of human rights, including Amnesty International, contributed with their work to the creation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the UN General Assembly in 1984.
The procedure can be initiated only at the demand of the prosecutor, who is required to justify his accusation. (Tomašević, G. 2009, Criminal Procedural Law) In the inquisitorial procedure a judge or a group of judges actively investigate the case, in order to declare the verdict and decide on the potential penalty. (Tomašević, G. 2009, Criminal Procedural Law) The judicial inquisitor is authorized to initiate and conduct an investigation at any sign of possible criminal offence. Presuming the guilt of the suspected person, the inquisitor starts to gather and to examine evidence only after he imprisons him or deprives him of his freedom. The procedure is one-sided – the tribunal issues the accusation and delivers the verdict, the inquisitor conducts the investigation in secrecy, while the accused cannot defend himself. Every step of the procedure was defined by strict regulations, in order to prevent the abuse of the inquisitor’s authority. The accused could be convicted only if he acknowledged his guilt in the presence of two honourable witnesses. Such stringent criteria for minimum evidence showed to be difficult to implement in practice. For this reason, the practice of torture was introduced to the inquisitorial procedure, in addition to other legal norms of the Roman law, which gradually gained more and more authority in the medieval legal system.
In 1252, the Pope Innocent promulgated the bull Ad extirpanda, a very important document for the practice of judicial torture, which authorized, in defined circumstances, the use of torture to extort confessions from heretics. Torture could be applied only in circumstances of a grave crime, if valid evidence was presented, if the confession of the accused was found to be truthful and in accordance with other evidence, and if the confession was repeated in neutral circumstances. The use of torture and its intensity were regulated: following the tribunal’s unanimous decision, torture was always performed in the presence of the judicial authority. Torture of children and pregnant women was prohibited. If the accused endured the torture, he would still be convicted, on the ground of insufficient evidence, and subjected to the so-called extraordinary punishment, which was normally less severe than that to which he would have sentenced had he confessed to the crime.