State-sanctioned torture: the Joint Divisions are to decide whether it constitutes a separate offence or an aggravating circumstance

It will be for the Joint Criminal Chambers to clarify whether public torture constitutes a separate offence or merely an aggravating circumstance. This is a highly significant issue, on which the case law of the Court of Cassation has provided differing guidance. The Joint Criminal Chambers were called upon to rule following Order No. 25758 of the Fifth Chamber, which acknowledged the irreconcilability of the various positions expressed.

In support of the argument in favour of the definition of torture committed by a public official as a distinct offence, the decisive factor is that the second paragraph of Article 613-bis of the Criminal Code does not merely introduce an increase in the penalty linked to the public official’s status, but identifies a distinct offence in its own right, with an independent assessment of its reprehensibility, linked to the abuse of public office and to the breach of the State’s duty to protect a person deprived of their liberty or, in any event, subject to the authority of a public official.

In line with this approach, and within the framework of international obligations regarding criminalisation, Law 110 of 2017 established the offence of torture, structured as a ‘variable geometry’: the scope of the provision may thus encompass both private torture and public torture, two distinct offences and, therefore, two different and independent criminal offences, of progressively greater severity, depending on the status of the perpetrator. Public torture (a specific offence) if the perpetrator is a public official or a person entrusted with a public service who commits the act by abusing their powers or in breach of the duties of their office or service; private torture (a general offence) in all other cases.

According to another line of reasoning, however, torture can only be regarded as an aggravating circumstance, because the provision, in its second paragraph, does not provide an independent description of the conduct, the event or the circumstances in which the victim finds themselves, but expressly refers to the ‘facts referred to in the first paragraph’, merely adding the subjective classification of the perpetrator – a public official or a person entrusted with a public service – and the functional link constituted by the abuse of powers or the breach of duties inherent in the office or service.

This therefore results in ‘a relationship of structural accessory to the standard offence, in which the perpetrator’s status as a public official does not constitute a separate offence, but constitutes an aggravating circumstance of the same offence of torture, by virtue of the greater reprehensibility arising from the abuse of public office. From this perspective, the different sentencing range provided for in the second paragraph is not considered, in itself, decisive in terms of autonomy, as the legislator may provide for special circumstances, with the penalty being set autonomously or independently of the sentencing range applicable to the basic offence’.