22 The origin of the suspicion to be considered is interpreted broadly by the CAT Committee. In the leading case Blanco Abad v Spain the Committee found that the authorities have a duty to investigate ‘wherever there are reasonable grounds to believe that acts of torture or ill-treatment have been committed and whatever the origin of the suspicion’.41 This is confirmed in the Istanbul Principles, passed by the General Assembly in 2000, stating that the investigative duty is triggered ‘if there are other indications that torture or ill-treatment might have occurred’42 as well as in ECHR case law, CPT reports, and the CoE Guidelines.43
23 Most evidently a suspicion arises where a person shows signs of abuse. If a person arrives healthy at a police station and leaves the same police station a short time later with (p. 343) certain bruises or injuries, this is a ‘reasonable ground’ to believe that an act of torture or cruel, inhuman or degrading treatment has been committed.44 This also goes for injuries that have occurred otherwise in the control of the state, eg during arrest. This has been confirmed in the case FK v Denmark where the complainant had cut himself resisting arrest and maintained that the treatment of the authorities amounted to ill-treatment. The Committee considered that in light of the fact that the circumstances of the incident and the intensity of the force used were disputed, the police could not accept ‘face value the explanation that the complainant had hurt himself’ and remained under the duty to initiate a prompt investigation.45 Consequently, whether the injuries were self-inflicted, the result of a legitimate use of force by the respective police officers or the result of ill-treatment needs to be established by a prompt and impartial investigation before an independent body.
24 It is however not necessary that the survivor displays signs of abuse. In the case Blanco Abad v Spain the Committee found a violation of Article 12 on the ground that the High Court had not started an investigation despite having before it five reports of a forensic physician which noted that the applicant had ‘complained of having been subjected to ill-treatment consisting of insults, threats and blows, of having been kept hooded for many hours and of having been forced to remain naked, although she displayed no signs of violence.’ The Committee considered that these elements should have sufficed for the instigation of an investigation.46 The UNSRT has repeated that demanding evidence of torture rising to the level of ‘proof’ (ie beyond a reasonable doubt) should not be necessary to establish the duty to investigate. Demanding visible or recognizable marks is problematic in countries where independent medical examinations are lacking and gives authorities the possibility to escape accountability by delaying an examination.47 Moreover, torture and ill-treatmnet often leave no visible marks.48 At the same time the Committee found in the case AA v Denmark that a general allegation that the detention as such—due to the vulnerability of the detainee as former victim of torture—amounts to a violation of the Convention is not sufficient as in that case ‘no reasonable purpose would have been served by such investigation’.49
25 The sources of information providing a ‘reasonable ground’ can be manifold. Efficient procedural safeguards are not only among the most effective means of preventing torture50 but the prompt notification of family members, access to a lawyer and an independent medical examination also provide for important means to detect torture and other forms of ill-treatment of a detainee and bring it to the attention of the competent investigation mechanism. Moreover, the examination before a judge within forty-eight hours after arrest, usually the first opportunity for victims to complain about their treatment, is an important opportunity to detect ill-treatment of detainees. The Committee has held that judges should inquire explicitly about the treatment received and should (p. 344) ask questions to check that all statements to the prosecutor were made freely and without any form of coercion. In case of an allegation the judge should record the allegation in writing, immediately order a forensic medical examination, and take all necessary steps to ensure the allegation is fully investigated.51
26 Of particular importance for the detection of possible ill-treatment is a thorough and independent medical examination of every detainee when arriving at a particular detention facility, when leaving this facility, and at any other time, in particular at his or her own request. Any physician examining a person detained or being released should question him or her specifically about torture and other forms of ill-treatment, take the answer into account in conducting the medical examination, and include both the question and answer in the medical report.52 It is of crucial importance that the examination is impartial which is why the Committee considers that the procedure for the medical examination of persons in police custody should be completely separate from the police element and the doctor independent of the police authorities.53 By means of a medical examination any sign of ill-treatment can be immediately detected and documented, making it possible to determine from which period it emanates, eg arrest, police detention, prison, etc. Moreover, it is often difficult and painful for a torture victim to talk about the traumatic experience and it is necessary to create conditions where the victim feels safe from reprisals and trustful that his or her allegations are taken seriously. An independent and competent doctor may be the best person to inquire about possible ill-treatment and gain the trust of the detainee.54 When a medical doctor detects ill-treatment, it is important that it is immediately reported. Therefore, the Committee considered that the obligation of confidentiality should not trump the need to report torture and other forms of ill-treatment and recommended establishing a reporting obligation for medical professionals.55
27 Detecting possible signs of torture and other forms of ill-treatment is however not always easy and requires knowledge about the methods employed in such situations (eg during interrogations) and its consequences, as well as investigative capacities. The lack of professional capacities of medical doctors and other professionals in contact with detainees and torture survivors constitute a problem in many countries.56 Therefore, the Committee regularly emphasizes the importance of applying the ‘Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading (p. 345) Treatment or Punishment’ (Istanbul Protocol), recommending it for the training of law enforcement officials, judges, prosecutors, forensic doctors, and medical personnel in dealing with detainees.57
28 Another very important way to find out whether and to what extent torture and other forms of ill-treatment are practised is to establish ‘a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty’ as stipulated in Article 1 OPCAT. An effective and independent National Preventive Mechanism (NPM)—established in line with Article 17 OPCAT—which regularly carries out unannounced visits to every place of detention and conducts private interviews with detainees—can detect possible cases of torture and other forms of ill-treatment and refer it to an independent authority competent to proceed to a prompt and impartial investigation.58 A Government genuinely interested in fighting impunity and investigating all suspicions of torture should also open up its detention facilities to unannounced visits by international mechanisms such as the UN Subcommittee on Prevention (SPT), the UNSRT, or competent international or domestic NGOs.
29 In practice, reporting by non-governmental organizations receiving complaints, information, and providing assistance to victims and relatives play an important role in detecting and documenting ill-treatment. This was explicitly acknowledged by the Committee in the case Khaled Ben M’Barek v Tunisia where it specifically considered reports of international NGOs alleging that the applicant died as a result of torture in detention as providing reasonable grounds to initiate an investigation.59 Consequently, supporting an active civil society that can work without interference increases the effectiveness of the duty to investigate.