Transit restrictions for instruments of torture

On 20 February 2019, Regulation (EU) No 2019/125 of the European Parliament and of the Council of 16 January 2019, known as Anti-Torture Regulation, came into effect. This consolidated Regulation supersedes the previous Regulation (EC) No 1236/2005 which is now repealed with the new Anti-Torture Regulation.

The purpose of this regulation is to monitor the trade in goods which could be used for

• inflicting capital punishment on human beings,
• the purpose of torture or
• other cruel, inhuman, or degrading treatment or punishment.

At the core of the Regulation are the lists of goods attached as Annexes II, III and IV. They specify goods that are seen as torture instruments and that are the subject of embargo measures such as prohibitions on goods in transit.

Annex II lists goods that are exclusively intended for inflicting capital punishment on human beings or that serve the purpose of torture or other cruel, unusual, or degrading treatment or punishment, such as:

• gallows and guillotines,
• electric chairs for the purpose of execution of human beings,
• gas chambers,
• certain electric shock devices,
• metal-tipped truncheons.

These goods have been specifically constructed for the execution of humans, or in order to exercise restraint over humans, or to control riots and disturbances.

The transit through the EU of goods that are listed in Annex II of the regulation is absolutely prohibited.

Exceptions from this prohibition can only be granted if the goods in transit are of a certain historical significance and exclusively intended for public exhibition in a museum. As a prerequisite, however, an authorisation by the competent authority must have been obtained.

Annex III, on the other hand, lists goods that may have some practical use other than for the purpose of torture or other cruel, inhuman or degrading treatment or punishment, such as:

• shackles and individual cuffs,
• so-called spit hoods,
• certain portable electric shock devices,
• portable weapons and devices for the purpose of riot control (such as tear gas or pepper spray).

Annex IV list goods which could be used for the execution of human beings, in this case

• short and intermediate acting barbiturates and the products containing them (such as pharmaceutical products).

An authorisation for the transit of goods listed in Annexes III and IV is not required, in principle, where such goods are moved under an external transit procedure in accordance with Article 266 of the Union Custom Code, Regulation (EU) No 952/2013. Their transit remains prohibited, however, if it is found that parts of the consignment are intended to be used for torture or other cruel, inhuman or degrading treatment or punishment in a third country.