Deviant state in the context of the anti-torture policy

Abstract

The paper is focused on the scope, limits, and consequences of contemporary anti-torture policies, shaped and implemented at both national and international levels. This research put a new critical view on the agenda, a view about the future of anti-torture policy in Europe, where the State deals as a deviant. The author tries to shape his view of the future of torture prevention and highlight the challenges that are already on the agenda of the national governments. The author argues that the economic problems of the State cannot in any case justify inhuman conditions of detention. It is stressed that the State must be the only actor responsible for any acts of torture and other forms of ill-treatment in places of detention, even those committed by private individuals. The author stresses that the prohibition of torture and other forms of ill-treatment is absolute. However, the author distinguishes absolutisation of the scope of the prohibition of torture from absolutisation of the means of the prohibition of torture. The author applies the Foucault's concept concerning the real preconditions of the abolition of torture as a tool of criminal investigation and form of punishment. Contemporary States should be evaluated in the system of coordinates of the mixture of the following open and hidden policies: 1) a policy of stigmatising of every violent act as “torture” or “ill-treatment”; 2) a policy of maximal spreading of anti-torture restrictions; 3) a policy of permanent hidden (sometimes – open) use of torture and ill-treatment; 4) a policy of supporting of spreading of torture (for example, the existence of prison violence and especially prison gangs in contemporary prisons). In the paper, the author identifies the problem of conceptual contradiction between Article 3 and Article 6 of the ECHR. In the author’s opinion, a danger exists that the presumption of innocence, under several circumstances, is in danger of being transformed into the hidden tool of the release of the State from its responsibility for torture committed both by its agents or private individuals in the places of detention. The author argues about a circle of incarceration and, in fact, planned victimisation of citizens in the context of the anti-torture policy. More demands for “security” mean more inmates and other individuals under punitive and semi-punitive control of the State. More inmates mean less prison beds, less food, and less resources per a prisoner. More inmates mean more corruption in closed institutions, more institutional subculture, informal institutional hierarchies, and violence. More inmates mean more ill-treatment in places of detention. At the same time, more inmates mean planned victimisation of the State in the context of its anti-torture policy. In other words, deviantisation of citizens leads to the deviantisation of the State in the context of its anti-torture policy. In the paper, the author identifies the problem of absolutisation of the scope of the prohibition of torture, while the States failed to deal with even lesser “volumes” of torture and other forms of ill-treatment in closed establishments and even in a free society. In parallel, attempts by the State to shape a ‘safer and securer society’ stimulate a bigger incarceration, which, in turn, leads to not obeying the standards of ill-treatment prevention by the States, even on the minimal level. Finally, the author also presents and analyses a definition of auto-deviantisation. The author argues about auto-deviantisation of the state in the context of the declared anti-torture policy.