ODIHR Opinion on Definition of Torture and its Absolute Prohibition in Polish
Legislation
I.
INTRODUCTION
1. On 9 April 2018, Deputy Commissioner for Human Rights from the Office of the
Commissioner for Human Rights of the Republic of Poland sent to the OSCE Office for
Democratic Institutions and Human Rights (hereinafter “ODIHR”) a request to review
Polish legislation in relation to the definition of torture and provide examples of
legislation on the definition from other jurisdictions.
2. On 17 April 2018, ODIHR Director responded to this request, confirming the Office’s
readiness to prepare a legal opinion on anti-torture legislation, particularly on the
relevant provisions of the Penal Code, which will assess its compliance with OSCE
human dimension commitments and international human rights obligations.
3. This Opinion was prepared in response to the above request. ODIHR conducted this
assessment within its mandate to assist OSCE participating States in the implementation
of key OSCE commitments in the human dimension.
II.
SCOPE OF REVIEW
4. The scope of this Opinion covers the definition of torture and other cruel, inhuman or
degrading treatment or punishment (hereafter, “other cruel, inhuman or degrading
treatment or punishment” is referred as “other ill-treatment”) in the Penal Code of
Poland in relation to international human rights law and recommendations of the United
Nations Committee against Torture (CAT). The Opinion does not constitute a full and
comprehensive review of the entire legal framework; however it touches upon a number
of essential elements pertaining to the absolute prohibition of torture and other illtreatment, as provided by the CAT in its concluding observation report on Poland.
5. As requested, the Opinion also contains an annex with some selected examples of the
definition of torture from other jurisdictions, chosen on the basis of their compliance
with international law, as opined by CAT. The examples serve merely to illustrate the
good legislative practice in other jurisdictions rather than implying any opinion or
recommendation thereon, by ODIHR.
6. The Opinion raises key issues and provides indications of areas of concern. In the
interest of concision, the Opinion focuses more on problematic areas rather than on
positive aspects of regulation in this field. The ensuing recommendations are based on
relevant international human rights obligations and OSCE commitments.
7. This Opinion is based on an English translation of the Constitution of the Republic of
Poland, the Polish Penal and Criminal Procedure Code, the Act of Poland on Foreigners
and the Act on Granting Protection to Aliens on the Territory of Poland. Errors from
translation may result.
8. In view of the above, ODIHR would like to make mention that this Opinion is without
prejudice to any written or oral recommendations or comments on the legal and
institutional framework governing the absolute prohibition of torture and other illtreatment, that ODIHR may issue in the future.
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