The relationship between torture and corruption

It has been observed that corruption and torture and other ill-treatment are inextricably linked (CAT/C/52/2, para. 91). While both corruption and, respectively, torture and ill-treatment have separately been the subject of extensive analysis, awareness raising and preventive measures, it is not yet sufficiently understood how these two forms of abuse interrelate and whether their eradication may be facilitated by the development of integrated measures¹.

In light of the Human Rights Council Resolution of 19 March 2018 on the negative impact of corruption on the right to be free from torture and other cruel, inhuman or degrading treatment or punishment (A/HRC/RES/37/19), the Rapporteur proposes to address the relationship between corruption and torture and ill-treatment in his thematic report to the Human Rights Council in March 2019, with a view to highlighting the central issues at stake and making recommendations towards better securing the protection against torture and ill-treatment in light of this relationship.

While treaty law does not comprehensively define corruption, it requires States to take a wide range of preventive, legislative and cooperative measures as part of the fight against corruption, including the criminalization of specific forms of conduct such as embezzlement², trading in influence³, illicit enrichment⁴, laundering proceeds of crime⁵, concealment⁶ and obstruction of justice⁷, as well as bribery⁸ and abuse of function⁹. In light of these provisions, for the purposes of the present consultation on the interrelation between corruption and torture, the core concept of corruption could be said to involve the following two elements: (a) the abuse of an official function or position of entrusted power and (b) the related transfer of an undue advantage to any person or entity. For a finding of corruption, it is irrelevant whether the abuse of function occurs with a view to inducing the transfer of an undue advantage, or whether the transfer of an undue advantage occurs with a view to inducing an abuse of function. It is further irrelevant whether such abuse of function or transfer of undue advantage is actually carried out, or merely offered or requested.

In terms of scale, corruption can range from petty bribery in everyday encounters with individual law enforcement officers and administrative officials to the manipulation of high-level policy in pursuit of undue advantages.  Moreover, the occurrence and proliferation of corruption is often linked to other forms of mismanagement of public affairs, public property or entrusted power, as well as to systems and structures which lack transparency, accountability and oversight.

Overall, corruption both drives human rights abuses and hinders the effective discharge of human rights obligations. It can be closely connected to the maintenance and proliferation of violent and discriminatory social orders¹⁰ which disproportionately impact on persons who are marginalized or in otherwise vulnerable or precarious situations.

In practice, petty corruption has been frequently encountered by this mandate and other international anti-torture mechanisms in contexts such as detention settings, policing practices, and across various stages of irregular migrants’ journeys (CAT/C/52/2, para. 80; A/HRC/37/50, paras. 8, 30, 34; A/64/215, para. 39; A/HRC/13/39/Add.5, paras. 64-66). In these contexts, corruption has been causally linked to the direct infliction of torture and ill-treatment, to the denial of protection from such abuse, and to the failure to prevent, investigate and prosecute torture or ill-treatment more broadly. More generally, corruption can permeate government policy, the implementation of the law and the administration of justice in a way which undermines every aspect of the fight against torture and ill-treatment.

Consequently, in many contexts, action taken to eradicate torture or ill-treatment may not be effective unless it addresses corruption at the same time. The fight against corruption, like the fight against torture and ill-treatment, requires proactive preventive tools, including structural and systematic measures, which aim to strengthen integrity, transparency, accountability and the rule of law, as well as effective policies for preventing impunity for violations.

In examining the relationship between corruption and, respectively, torture or ill-treatment, this consultation aims to explore causalities, synergies and fault lines and to help refine, deepen, and render more effective the tools employed in the fight against torture and ill-treatment.  

To this end, the Special Rapporteur invites interested States, international organizations, civil society organizations and experts to contribute to his consultation by responding to the questionnaire.

Notes:

1. But see, inter alia, CAT/C/52/2, paras. 72-100; Steffen Jensen and Morten Koch Andersen (eds), Corruption and Torture: Violent Exchange and the Policing of the Urban Poor (Aalborg Universitetsforlag 2017); Christine Bicknell, ‘A Hydra in Detention Settings: A Context-Based Inquiry of Corruption’s Many Heads’ (2017) 17 Human Rights Law Review 1.

2. UN Convention Against Corruption (UNCAC), Articles 17, 22.

3. UNCAC, Article 18.

4. UNCAC, Article 20.

5. UNCAC, Article 23.

6. UNCAC, Article 24.

7. UNCAC, Article 25.

8. UNCAC, Articles 15, 16 and 21.

9. UNCAC, Article 19.

10. See also Jensen and Andersen, (eds), Corruption and Torture: Violent Exchange and the Policing of the Urban Poor (Aalborg Universitetsforlag 2017).