Ban on trade in instruments of torture

Outline of the Community (European Union) legislation about Ban on trade in instruments of torture

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Human rights > Fundamental rights within the European Union

Ban on trade in instruments of torture

Document or Iniciative

Council Regulation (EC) No 1236/2005 of 27 June 2005 concerning trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment.

Summary

Under this regulation, any export or import of goods that have no practical use other than for the purpose of capital punishment, torture and other cruel, inhuman or degrading treatment or punishment is prohibited. Moreover, authorisation is required for the export of goods that could be used for purposes of torture or other cruel, inhuman or degrading treatment or punishment, irrespective of the origin of such equipment.

The national authorities of European Union (EU) countries that are empowered to take decisions on requests for import or export authorisations should distinguish between goods that have no practical use other than that of carrying out capital punishment or inflicting torture * and other cruel, inhuman or degrading treatment or punishment * and goods that could be used for such purposes. The import or export of the latter could be authorised on the basis of criteria defined in the regulation. The goods covered by this regulation are listed in Annexes II and III. The Commission may amend these lists as soon as new equipment appears on the market.

Competent authorities may exempt from the prohibition to export or import goods that have no practical use other than for the purpose of capital punishment, torture and other cruel, inhuman or degrading treatment or punishment (Annex II), if it is proved that the goods concerned will be used in the country of destination for purposes of public display in a museum, in view of their historical significance.

An export authorisation is required for goods that could be used for purposes of torture or other cruel, inhuman or degrading treatment or punishment, as listed in Annex III. However, no authorisation is required for goods in transit through the Community’s customs territory.

There is no obligation to issue an authorisation for exports of goods listed in Annex III to the territories of EU countries that are not part of the Community customs territory (Annex IV), provided that the goods in question are used by a law enforcement authority. Nor is there any obligation to issue an authorisation for exports of goods listed in Annex III that are to be used by EU countries’ military or civilian personnel in the context of a peacekeeping or EU or UN crisis management operation in the non-EU country concerned or of an operation based on defence-related agreements between EU countries and non-EU countries.

Decisions to grant export authorisations are taken on a case-by-case basis by the competent authority in the EU country where the applicant is based (Annex I). The competent authority does not grant an authorisation if there is good reason to believe that the goods listed in Annex III could be used for purposes of torture or other cruel, inhuman or degrading treatment or punishment by a law-enforcement authority or any legal or natural person in a non-EU country.

An EU country may exempt from these arrangements certain goods listed in Annex III by adopting or maintaining a total ban on the import and export of leg-irons, gang chains and portable electric shock devices.

In order to harmonise the authorisation procedures, export and import authorisations are issued using a form based on the model in Annex V that are valid throughout the EU. The competent authorities may refuse to grant an export authorisation and cancel, suspend, amend or withdraw an authorisation that has already been granted. When completing customs formalities, the exporter or importer submits the form duly completed, as proof that the necessary authorisation has been obtained. If authorisation is not granted, the customs authorities keep the goods declared and draw attention to the option of applying for an authorisation. After six months, if a request for authorisation has not been submitted, the customs authorities may destroy the goods in accordance with national law.

The authorities of EU countries notify all the other EU country authorities and the Commission of decisions rejecting a request for an authorisation and of any decisions rescinding an authorisation that has already been granted. The Commission and EU countries inform each other about measures taken under this regulation and about authorisations that have been granted or rejected.

A public annual activity report is drawn up by EU countries, in cooperation with the Commission if possible.

The Commission is assisted by the committee on the common rules applicable to exports of products set up by Regulation (EEC) No 2603/69. This committee examines all issues relating to the application of this regulation.

The EU countries themselves establish rules on the penalties applicable to violations of the regulation. These rules must be notified to the Commission by 29 August 2006 at the latest.

This regulation applies to the Community’s customs territory, the Spanish territories of Ceuta and Melilla, and the German territory of Helgoland.

Key terms used in the act

Torture: any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from that person or from a third person information or a confession, punishing that person for an act that either that person or a third person has committed or is suspected of having committed, or intimidating or coercing that person or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted either by or at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity. It does not, however, include pain or suffering arising only from, inherent in or incidental to, lawful penalties. Other cruel, inhuman or degrading treatment or punishment: any act by which significant pain or suffering, whether physical or mental, is inflicted on a person, when such pain or suffering is inflicted either by or at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity. It does not, however, include pain or suffering arising only from, inherent in or incidental to, lawful penalties.

References

Act	Entry into force	Deadline for transposition in the Member States	Official Journal
Regulation (EC) No 1236/2005	30.7.2006	–	OJ L 200 of 30.7.2005

Successive amendments and corrections to Regulation (EC) No 1236/2005 have been incorporated in the basic text. This consolidated versionis for reference purposes only.

LAST AMENDMENTS OF ANNEXES

Annexes I – List of authorities
Regulation (EU) No 1226/2010 [OJ L 336 of 21.12.2010].