Torture is prohibited in many international instruments. As for example, article 5 of the Universal Declaration of Human Rights 1948 and article 7 of the International Covenant on Civil and Political Rights 1966 prohibit torture and cruel or inhuman and degrading treatment or punishment. Adopted in 1984, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment exclusively prohibits torture as well as sets out complaint mechanism against torture. In 1998, Bangladesh has signed and ratified this international convention in line the constitutional mandate as expressed in article 35(5) of the Constitution concerning the prohibition of torture. In 2013, Bangladesh has also enacted a law titled Torture and Custodial Death (Prevention) Act to punish law enforcing agency or its member(s) for causing torture and/or custodial death.
The law has borrowed the definition of ‘torture’ in section 2(6) from the 1984 Convention by saying that ‘torture’ means any act which causes physical or mental pain and suffering to a person. Torture includes, among others, infliction of physical and mental pain on a person for obtaining information or confession, punishing a person for an act he has committed or is suspected of having committed, or intimidating or coercing him or a third person. Moreover, infliction of pain or suffering is torture when it is done for any reason based on discrimination of any kind, or by or at the instigation of or with the consent of a public official or other person acting in an official capacity. Under section 12, war, threat of war, internal political instability, emergency situation or any order of a superior officer/authority can never work as an excuse to torture someone.
According to section 2(7), custodial death means the death of a person in the custody of a public official. Moreover, it includes the death of a person during illegal detention or arrest by any member of a law enforcing agency. It also means the death of a person during interrogation or remand irrespective of the fact that he is a witness or not in a case.
Victim or aggrieved person under section 2(8) of this Act refers to a person who has been directly tortured or whose any acquaintance has been tortured according to the definition of law.
Section 4 of the Act empowers the Court to write a record of torture immediately when anyone appears before the Court with a complaint of torture. The Court is to order for the medical examination of the tortured person by a registered doctor. In case the victim is a female, she should be examined by a female doctor. The doctor is required to prepare a report within 24 hours mentioning the marks of injury and hurt as well as the possible time when the victim was tortured. The reports must be submitted to the Court and shared with the complainant or any person nominated by him.
According to section 5, the Court will send a copy of record of torture to the Police Super or any Police Officer of higher rank, and also give order to file a criminal case. The Court will order for the arrangement of admitting the victim in a hospital, if it is required at the advice of the doctor. At the receipt of this order, the Police will make an investigation on the complaint and submit a report either with charge or without charge. However, the Court can give an order for holding a judicial inquiry, if the Court is satisfied on the application of the aggrieved person that the Police cannot properly complete the investigation.
Filing a complaint of torture by a third party is possible under section 6 and the Court is required to give an order for the safety and protection of the complainant. Even the Court can visit the place where the alleged torture has taken place.
According to section 8, investigation under this law needs to be completed within 90 days from the date of filing the complaint. In exceptional cases, delay in investigation is allowed up to 30 days on reasonable grounds after hearing the victim or aggrieved person. Offences of torture under this law are cognizable, non-compoundable and non-bailable.
The complainant can file a petition to the Session Judge Court seeking safety and protection under section 11. State and alleged accused can be made parties in such petition which is required to be disposed of within 14 days after serving a seven-day notice to the opposite party. While disposing of the case, the Court can detain the opposite party for a maximum period of seven days with an option to increase the period from time to time. To ensure the safety of the complainant, the Court can move to a particular place and deter the opposite party from entering such place.
The burden to disprove the allegation of torture is upon the accused. The trial under this Act must be completed by the Session Judge Court within 180 days and the time can be extended up to 30 days more. An offender can be punished with an imprisonment of maximum 5 years or a fine of maximum BDT 50,000 or both. Section 15 requires the victim or aggrieved person to be compensated with BDT 25,000. If victim dies due to torture, the offender will be punished with a rigorous imprisonment for life or a fine of maximum BDT 1 lakh or both. In this case, victim’s family or aggrieved will be compensated with BDT 2 lakh. An appeal can be filed to the High Court Division against the decision of the Session Judge Court.