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Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Part I Substantive Articles, Art.12 Ex Officio Investigations

Moritz Birk

From: The United Nations Convention Against Torture and its Optional Protocol: A Commentary (2nd Edition)

Edited By: Manfred Nowak, Moritz Birk, Giuliana Monina

Content type:
Book content
Product:
Oxford Scholarly Authorities on International Law [OSAIL]
Series:
Oxford Commentaries on International Law
Published in print:
19 December 2019
ISBN:
9780198846178

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 21 September 2023

Subject(s):
Torture — Treaties, interpretation — Jurisdiction of states, universality principle

(p. 336) Article 12  Ex Officio Investigations

Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.

1.  Introduction

1  Widespread impunity is one of the root causes for the continuation of torture and ill-treatment.1 Although many States have aligned their legal framework to international standards by enacting new anti-torture laws, these have often not been used in practice. The implementation gap between law and practice has reportedly even increased over the last decades.2 The exception is where the law requires the investigation by fully (p. 337) independent bodies—of which there are however only very few examples worldwide.3 Thus, impunity remains a widespread problem.

2  In the 2010 Global Study on the Phenomenon of Torture and other forms of Ill-treatment, the then UNSRT Manfred Nowak has described the magnitude of impunity in most countries visited as ‘close to total’ and as ‘one of the most disappointing findings’ of his tenure.4 He identified a ‘don’t ask, don’t tell’ approach among law enforcement officials regarding suspects who show signs of torture thereby ignoring the obligation to initiate ex officio obligations.5 Allegations of torture are all too often not taken seriously in a general mistrust of (suspected) criminals.6 Where investigations are carried out, this is often not done in an effective manner. The key problem appears to be that most investigations are carried out by the same authorities who are accused of committing such acts or that have close links to the suspects, usually the police. The strong feelings of loyalty and solidarity among police officers pose a serious conflict of interest for the investigators.7 The lack of impartiality often extends to prosecutors and judges, who are more likely to side with law enforcement officials than alleged ‘criminals’ or ‘terrorists’, resulting in a considerable reluctance to bring charges.8

3  Combating impunity is one of the most important objectives of the CAT.9 It obliges states to criminalize torture (Article 4), to establish (universal) jurisdiction over the crime (Articles 5 to 9), and thereby to ensure that there is no ‘safe haven’ for torturers. Moreover, victims of torture need to have the effective possibility to complain about torture without having to fear reprisals and have their case promptly and impartially investigated by competent authorities (Article 13).

4  Article 12 reinforces the investigative duty by shifting the responsibility of initiating an investigation to the State. It does not depend on a complaint but the competent authorities need to proceed ‘wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction’. This obligation to institute investigations ex officio is very important as victims of torture and other forms of ill-treatment often have no access to complaints mechanisms or fail to complain due to fear of reprisals and a lack of trust in the mechanisms. Therefore, during the discussions of both provisions, the Working Group in 1980 reversed the order contained in the Declaration and the original Swedish draft to start with the obligation now contained in article 12 on the ground that ‘the prevention and punishment of acts of torture were primarily the responsibility of the Government of States parties and not that of the victim, who may not be in a position to make complaints’.10

5  Although the reasoning for the reversal of Articles 12 and 13 in the Working Group refers to ‘prevention and punishment’, one needs to distinguish the investigation required by these two provisions from the criminal investigation and prosecution (p. 338) foreseen in Articles 6(2) and 7. Articles 5 to 9 require States parties to establish different types of jurisdiction with the aim of avoiding safe havens for individuals responsible for torture practices and, as soon as such individuals are present on their territory, to arrest them for the purpose of either prosecution or extradition. The obligation to bring individual perpetrators to justice only applies to torture, not to cruel, inhuman or degrading treatment.11

6  Articles 12 and 13, on the other hand, are not part of the criminal jurisdiction provisions in the Convention, but of those establishing effective measures for the prevention of torture as well as other forms of ill-treatment.12 The obligation to investigate is not triggered by the fact that a suspected torturer is on the territory of a State party, but by the suspicion of the competent authorities of a State party that an act of torture or cruel, inhuman or degrading treatment might have been committed in any territory under its jurisdiction.13 The duty to investigate is explicitly applicable to torture and other forms of ill-treatment (Article 16 (1)). However, in its practice, the Committee does not always make a clear distinction between Articles 12 and 13 as well as between these two preventive provisions and the requirement of criminal investigations under Articles 5 to 9.14

7  The effective investigation of torture and other forms of ill-treatment has numerous purposes as spelt out in the Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Principles) that have been endorsed by the Committee against Torture and other human rights bodies:15 clarification of the facts and establishment and acknowledgement of individual and State responsibility for victims and their families; identification of measures needed to prevent recurrence; facilitation of prosecution, and/or, as appropriate, disciplinary sanctions for those indicated by the investigation as being responsible, and demonstration of the need for full reparation and redress from the State, including fair and adequate financial compensation and provision of the means for medical care and rehabilitation.16

(p. 339) 2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

7  Declaration (9 December 1975)17

Article 9

Wherever there is reasonable ground to believe that an act of torture as defined in article 1 has been committed, the competent authorities of the State concerned shall promptly proceed to an impartial investigation even if there has been no formal complaint.

8  IAPL Draft (15 January 1978)18

Article IV

The Contracting Parties undertake to adopt legislative, judicial, administrative and other measures necessary to give effect to this convention to prevent and suppress torture, and in particular, to ensure that:

  1. (c)  all complaints of torture or any circumstances which give reasonable grounds to believe that torture has been committed shall be investigated speedily and effectively and that complainants shall not be exposed to any sanction by reason of their complaints, unless they have been shown to have been made falsely and maliciously.

9  Original Swedish Draft (18 January 1978)19

Article 10

Each State Party shall ensure that, even if there has been no formal complaint, its competent authorities proceed to an impartial, speedy and effective investigation, wherever there is reasonable ground to believe that an act of torture or other cruel, inhuman or degrading treatment or punishment has been committed within its jurisdiction.

10  United States Draft (19 December 1978)20

Combining Articles 9 & 10

If there is reasonable basis for belief that an act of torture or other cruel, inhuman or degrading treatment or punishment has been or is being committed within a State Party’s jurisdiction, its competent authorities shall initiate and carry out an impartial, speedy and effective investigation.

(p. 340) 11  Revised Swedish Draft (19 February 1979)21

Article 13

Each State Party shall ensure that, even if there has been no formal complaint, its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.

2.2  Analysis of Working Group Discussions

12  In written comments on Article 10 of the original Swedish draft, France suggested that the words ‘reasonable ground’ (‘de bonnes raisons’) be replaced by ‘serious grounds’ (‘des raisons sérieuses’).22

13  The United States explicitly voiced the opinion that it would be appropriate that the obligation to conduct a speedy, impartial, and effective investigation apply both to acts of torture and cruel, inhuman or degrading treatment or punishment if there is reasonable basis for belief that an offence has been committed.23

14  The United Kingdom proposed that the word ‘jurisdiction’ be deleted from the last line of Article 10 and replaced with ‘territory’.24

15  During the discussion in the 1980 Working Group it was suggested that Articles 12 and 13 be reversed. The rationale of the representative who made this proposal was that the prevention and punishment of acts of torture were primarily the responsibility of the Governments of States parties and not that of the victim, who may not be in a position to make complaints. The Working Group agreed to this proposal. It further decided to delete the phrase ‘even if there has been no formal complaint’ contained in Article 13.25

16  In response to the question on the scope of the phrase ‘territory under its jurisdiction’, it was said that it was intended to cover, inter alia, territories still under colonial rule and occupied territories.

3.  Issues of Interpretation

17  The duty to conduct prompt and impartial investigations is of crucial importance in the fight against torture and other forms of ill-treatment. Therefore Committee has recommended ‘the setting up of a specific legal framework, to eliminate impunity for perpetrators of acts of torture and ill-treatment by ensuring that all allegations are investigated promptly, effectively and impartially’,26 notably the inclusion of the obligation in legislation such as the criminal procedure code.27 The UNSRT has equally recommended enshrining the fundamental principles of investigation in legislation28 and (p. 341) that there ‘should be protocols and guidelines for the prison administration about cooperating with the authorities by not obstructing the investigation and by collecting and preserving evidence’. The CPT emphasized that ‘the legal framework for accountability will be strengthened if public officials (police officers, prison directors, etc) are formally required to notify the relevant authorities immediately whenever they become aware of any information indicative of ill-treatment.’29

18  At the same time the Committee has criticized the frequently substantial gap between the legal framework and its practical implementation with many countries without any or no meaningful record of investigations, prosecution, and sentencing of torture despite widespread reports and numerous complaints of torture.30 Therefore a legal framework is clearly not enough: the relevant authorities also need to be sensitized about the obligations incumbent upon them31 and practical measures need to be taken to ensure effective investigations—most importantly by creating an independent investigation mechanism.32 A continuous point of criticism is the lack of data provided by States on the number of complaints, investigations, prosecutions, and sentences for torture. This makes it very difficult for the CAT Committee to assess whether the State party is effectively implementing the duty to investigate.

3.1  Meaning of ‘reasonable ground to believe’

19  A head of a police station or a pre-trial detention centre does not have to wait until a detainee comes to his or her office and lodges a formal complaint of torture. Article 9 of the Declaration and the different drafts of Article 12 CAT required States to proceed promptly to an impartial investigation ‘even if there has been no formal complaint’. This phrase was only omitted after the order of Articles 12 and 13 had been reversed with the aim of underlining that investigations should normally start ex officio and not on the basis of a formal complaint.33

3.1.1  Obligation to Proceed to an Investigation Ex Officio

20  The obligation to proceed to an investigation ex officio34 in Article 12 shifts the responsibility to initiate an investigation from the victim to the State authorities most directly involved. It does not need a complaint and evidently even less so proof by the alleged victim that he or she has been subjected to torture. This is of vital importance since torture and other forms of ill-treatment usually take place behind closed doors without any outside witnesses, and the survivors are often too afraid to complain officially about such practices. The obligation extends to other forms of ill-treatment as explicitly stated (p. 342) in Article 16, para 1. Consequently, legally requiring a formal request as a precondition for opening an inquiry and the initiation of judicial investigation proceedings constitutes a violation of Article 12 CAT.35

21  The Committee repeatedly stressed that once there is a reasonable ground to believe that torture or ill-treatment have been committed the decision on whether to conduct an investigation is not discretionary.36 It found a system that leaves the option of not ordering an investigation or not prosecuting the perpetrators of acts of torture and other forms of ill-treatment involving law enforcement officers to be in contravention of Article 12.37 It also rejected the requirement of prior ministerial authorization for investigating law enforcement officials.38 The Council of Europe Guidelines on Effective Investigation of Ill-treatment additionally prescribe that the decision to discontinue or not an investigation should only be taken by ‘an independent, competent authority upon thorough and prompt consideration of all the relevant facts’ and ‘should be subject to appropriate scrutiny and challengeable by means of a public and adversarial judicial review process’ in order to ensure the mandatory nature of investigations.39 The Committee has also continuously criticized amnesty laws and stressed that waivers of prosecution and statutes of limitations do not apply under any circumstance to the crime of torture.40

3.1.2  Origin and Level of Suspicion Required

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.

3.2  Meaning of ‘prompt investigation’

30  In the case of a suspicion of torture or ill-treatment, a prompt investigation is of particular importance ‘both to ensure that the victim cannot continue to be subjected to such acts and also because in general, unless the methods employed have permanent or serious effects, the physical traces of torture, and especially of cruel, inhuman or degrading treatment, soon disappear.’60 This naturally extends to other forms of evidence than physical traces as shown in the case Alexander Gerasimov v Kazakhstan where the Committee criticized that the results of the scientific examination of the clothes of the complainant and alleged perpetrators were compromised as it was carried out more than three months after the alleged torture and after they had been washed.61 Moreover, a prompt response to a suspicion by the authorities is essential for maintaining public confidence in the State’s adherence to the rule of law and its clear rejection of torture and other forms of ill-treatment.62

(p. 346) 31  In most cases in which the Committee found a violation of Article 12, no investigations had been carried out at all or only after long periods ranging from several months to many years.63 In some cases the Committee found a violation although the State authorities claimed that the investigation was still ongoing, because it had provided no evidence helping the Committee ‘to ascertain what progress has been made, to judge how effective the procedure might be or to explain the reasons for such a delay’.64 The Committee expressly rejected the argument that the lack of progress is due to lack of cooperation of the complainant residing outside the country.65

32  In order for an investigation to be prompt and effective, it must be initiated immediately or without any delay,66 within hours or, at the most, few days after the suspicion of torture or ill-treatment has arisen. This is confirmed by the case Blanco Abad v Spain in which a delay of two weeks was held to constitute a violation of Article 12. The case concerned the ill-treatment of the complainant by officers of the Guardia Civil between 29 January and 2 February 1992, where she had been kept incommunicado under anti-terrorist legislation.67 Signs of her ill-treatment were noticed by a doctor at a Women’s Penitentiary Centre who had examined her upon arrival on 3 February 1992. The prison director, in complying with the relevant obligations under Articles 12 and 13, immediately brought the physician’s report to the attention of the competent judge. The Committee observed that ‘when, on 3 February, the physician of the penitentiary centre noted bruises and contusions on the author’s body, this fact was brought to the attention of the judicial authorities. However, the competent judge did not take up the matter until 17, and February the Court initiated preliminary proceedings only on 21 February.’68 The UNSRT has even recommended that all suspicions and allegations of (p. 347) torture and other ill-treatment should be investigated and documented within twenty-four hours.69

33  An investigation must not only be initiated promptly but should also be carried out and concluded as expeditiously as possible.70 In this regard, the Committee has criticized countries where serious accusations ‘remain at the protracted investigation stage’71 and ‘judicial procedures remain excessively long and drawn out’.72 In the same manner the ECtHR has not only considered the starting of the investigation but whether different investigative measures, eg taking of statements or the forensic medical examination were taken belatedly.73

3.3  Meaning of ‘competent authorities’

34  While criminal investigations must necessarily lead to a decision by an independent and impartial tribunal within the meaning of Article 14 CCPR,74 Article 12 CAT only requires a prompt and impartial investigation by a ‘competent authority’. Apart from the courts, this can also be undertaken by national human rights institutions, ombuds-institutions, detention monitoring commissions, public prosecutors, administrative agencies, and even police chiefs and prison directors, who have a genuine interest in preventing torture and other forms of ill-treatment within their respective detention facilities.

35  The Committee recommends to establish national human rights institutions (NHRI) to carry out investigations.75 Although the Paris Principles do not specifically prescribe that NHRIs should have the mandate to receive and investigate complaints,76 the Committee has noted with concern where the mandate ‘does not empower it to investigate action taken by the Prosecutor’s office’.77 At the same time the Committee also expressed concern where ‘cases of torture continue to be investigated only by administrative, disciplinary or military, rather than criminal jurisdictions.’78

36  In order to be effective any genuine investigating body must be entrusted with full investigative powers, such as summoning witnesses, interrogating the accused officials, inspecting official documents, and carrying out forensic examinations, if necessary also after the exhumation of the mortal remains of an alleged victim of torture.79 Thus, the Committee expressed concern where investigative mechanisms are restricted in their investigative powers, eg when the prosecution service and enforcement judges have difficulties accessing prisons.80 This is confirmed by the Istanbul Principles stating that ‘the (p. 348) investigative authority shall have the power and obligation to obtain all the information necessary to the inquiry’ including the necessary budgetary and technical resources, the authority to summon alleged perpetrators and any witness and to demand the production of evidence.81 Thus, no legal or practical obstacles should impede investigations,82 such as not disclosing the identity of members of special and rapid intervention forces83 or the wearing of masks by police or prison offices or blindfolding detainees making identification of perpetrators impossible.84A promising practice in that regard is the Police Ombudsman of Northern Ireland that is provided with the same type of powers as police officers, eg to carry out searches, seize equipment, and if necessary arrest police officers.85 Moreover the ability to ‘freeze a crime scene’ once there is a suspicion of police malpractice—as granted to the Independent Commission of Investigations in Jamaica—can be very useful to avoid that potentially responsible law enforcement officials tamper with evidence.86

37  It is of course also important that the competent authorities have the professional capacities to carry out effective investigations. This may be particularly challenging when it comes to independent external oversight bodies—such as NHRIs—that are composed of civilians rather than former investigators belonging to the state. Therefore, it is important that the investigators receive the adequate training in investigation, eg investigation planning, collecting evidence and investigative interviewing, evaluation of facts, reporting, etc.87

3.4  Meaning of ‘impartial investigation’

38  Impartiality is considered as the key requirement of the investigation process.88 As Burgers and Danelius state ‘any investigation which proceeds from the assumption that no such acts have occurred, or in which there is a desire to protect the suspected officials, cannot be considered effective’.89

39  Article 12 does not require an investigation by an independent body, much less by a judicial body. This is confirmed by the Committee’s case-law where it only finds a violation on the basis of the conduct of the investigation (how it was carried out) but not merely because of a lack of independence of the investigative body from the authorities (p. 349) suspected of torture or other forms of ill-treatment (by whom it is carried out). For example, in the case NZ v Kazakhstan the Committee expressed concern that the preliminary examination of complaints of torture and other forms of ill-treatment by police officers was undertaken by an entity under the same chain of command as the regular police force (Department of Internal Security—DIA) but did not find a violation due to lack of evidence that the investigation was not carried out in an impartial manner.90 The ECtHR has taken a very similar approach to the requirement of independence of investigations. Instead of making an abstract assessment of the independence of the investigative body it examines it ‘in its entirety’ looking at its potential conflicts of interest, hierarchical relationships with potential suspects, and the specific conduct.91 This means that even where statutory independence is missing, an investigation can be sufficiently independent, although it will require a stricter scrutiny of the exact conduct of the investigation.92 At the same time, the Committee regularly criticizes the lack of independence of investigation mechanisms in its Concluding Observations. In the following the requirement of impartiality will be anlayzed both as to the conduct of the investigation as well as the set-up of an investigation mechanim.

3.4.1  Conduct of the Investigation

40  The Committee interprets the notion of impartiality broadly and demands the investigation to be ‘effective’93 and ‘thorough’,94 as well as ‘aimed at determining the nature of the reported events, the circumstances surrounding them and the identity of whoever may have participated in them.’95

41  For that purpose it is important that the investigation not only considers the testimony of the alleged perpetrators but also the complainants or their relatives’ statements and medical evidence.96 In this sense, the Committee found a violation in the case Rasim Bairamov v Kazakhstan, where the investigative body relied on the testimony of the alleged perpetrators but the complainant was never questioned regarding his ill-treatment and no medical examination was carried out. Similarly, the Committee found a violation in the case Oleg Evloev v Kazakhstan because the investigation relied too heavily on the testimony of the alleged perpetrators, attaching little weight on the complainants or relatives’ statements and on the uncontested medical evidence documenting the injuries.97 In the case NZ v Kazakhstan the investigation also relied heavily on the testimony of the police officers, but involved also the questioning of other participants in the events as well as the medical personnel who first examined the alleged victims.98 Moreover, the investigation by the Department of Internal Security was followed by the prosecutor’s office that several times revoked its closing and returned it for additional investigation. Therefore, (p. 350) the Committee found that the complainant failed to substantiate that the investigation was not efficient and impartial.99 An impartial investigation naturally also requires that it is free from any discrimination on gender, race, social origin, or any other grounds.100

42  An effective and thorough investigation needs to include some minimum investigatory steps such as the questioning of the complainant about ill-treatment, a forensic-medical investigation, and the summoning of certain witnesses.101 The Committee found that a mere ‘inspection’ of a penitentiary institution can clearly not be considered an effective investigation in the sense of Article 12 CAT.102 The lack of thoroughness was particularly criticized in regard to the US inquiries into torture allegations overseas. It its Concluding Observations to the US State report the Committee noted with concern that ‘some former CIA detainees, who had been held in United States custody abroad, were never interviewed during the investigations, which casts doubts as to whether that high-profile inquiry was properly conducted.’103 On the other hand, where the decision to dismiss a complaint was based on a variety of sources, from medical reports and statements of detainees and witnesses who had no apparent conflict of interest, the Committee did not conclude that the investigation lacked impartiality.104

43  In the case M’Barek v Tunisia regarding a person allegedly tortured to death, the Committee criticized that the examining magistrate failed to make use of other important investigations customarily conducted in such matters. It specifically noted that the magistrate could have checked the records of the detention centres for the presence of the complainant and witnesses, in reference to the duty to keep detention records in Principle 12 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment; sought to identify and examine the accused officials, and arrange a confrontation between them, the witnesses, and the complainant; ordered an exhumation of the victim (if possible in the presence of external experts) in view of the major disparities between the findings of forensic officials.105 The Committee held that the magistrate in ‘failing to investigate more thoroughly, committed a breach of the duty of impartiality imposed on him by his obligation to give equal weight to both accusation and defence during his investigation’.106

44  Similar considerations were made in the case of Ristic v Yugoslavia, which concerned allegations about an act of torture by the police that resulted in the death of the victim. The Committee pointed to various inconsistencies between the official autopsy report and a report of two forensic experts made at the request of the parents of the victim, as well as between statements of the three police officers accused of having tortured the victim, and to the fact that the doctor who had carried out the official autopsy (p. 351) admitted that he was not a specialist in forensic medicine. Noting the above elements, the Committee concluded that ‘the investigation that was conducted by the State party’s authorities was neither effective nor thorough. A proper investigation would indeed have entailed an exhumation and a new autopsy, which would in turn have allowed the cause of death to be medically established with a satisfactory degree of certainty.’107

45  A forensic medical examination is of particular importance for a thorough investigation. An important factor for the low conviction rate of perpetrators of torture and other forms of ill-treatment is the lack of evidence, particular medical evidence.108 Consequently, the allegation of the survivor stands against the statement of the alleged perpetrator who is unlikely to confess and the colleagues unlikely to testify against him or her. Therefore, in its General Comment 3 to Article 14 the Committee stated that an investigation in the sense of Article 12 CAT ‘should include as a standard measure an independent physical and psychological forensic examination as provided for in the Istanbul Protocol.’109 Also the UNSRT has emphasized the importance of systematically evaluating evidence by independent and impartial forensic services.110 It is important that such medical examination is conducted promptly, by an independent professional and in conformity with the professional standards established in the Istanbul Protocol.111 The forensic examination should take place ‘outside the place of detention and the contents of the medical report should not be made known to the personnel responsible for police custody. In addition, persons in police custody should be able to request that a medical certificate be prepared by a doctor of their choice in any circumstances, and it should be possible for this certificate to be produced as evidence before the courts.’112 The Committee has however emphasized that forensic medical reports alone are ‘often insufficient and need to be compared with other sources of information’ to determine whether torture has taken place.113

46  The Istanbul Protocol published in 1999 was developed jointly by forensic scientists, physicians, psychologists, human rights monitors, and lawyers from all over the world. It contains principles for the effective investigation and documentation of torture (Istanbul Principles) that have been endorsed by the General Assembly as well as the UN Human Rights Commission and Council.114 The Istanbul Protocol ‘intended to serve as international guidelines for the assessment of persons who allege torture and ill-treatment, for investigating cases of alleged torture and for reporting findings to the judiciary or any other investigative body’.115 It includes sections on the legal investigation (p. 352) of torture; holding interviews; collecting of physical and psychological evidence. Today, it is the widely recognized standard for investigations, cited by national and international courts, used for preparing medical reports, and in trainings of medical and legal professionals worldwide.116

47  Further guidance on what is required from a ‘thorough’ investigation can be found in the jurisprudence of the ECtHR,117 the IACtHR,118 reports of the CPT,119 and most specifically the Council of Europe guidelines that even provide a ‘typical inventory of required investigative measures’ such as detailed and exhaustive statements of alleged victims obtained with an appropriate degree of sensitivity; appropriate questioning and, where necessary, the use of identfication parades and other special investigative measures designed to identify those responsible; confidential and accurate medical (preferably forensic) physical and psychological examinations of alleged victims (carried out by independent and adequately trained personnel); other medical evidence; appropriate witness statements, possibly including statements of other detainees, custodial staff , members of the public, law enforcement officers, and other officials; examination of the scene for material evidence, including implements used in ill-treatment, fingerprints, body fluids, and fibres that should involve the use of forensic and other specialists able to secure and examine the evidence; and examination of custody records, decisions, case files, and other documentation related to the relevant incident.120

48  It is important that all the evidence is ‘assessed in a thorough, consistent and objective manner’.121 Therefore the existence of an independent judiciary is crucial. In several Concluding Observations to State reports the Committee expressed concern with alleged cases of ethnic bias and politically influenced judicial procedures,122 and where the executive branch is responsible for the appointment, promotion, and dismissal of judges or otherwise influences the judiciary.123 A consequence may be that allegations (p. 353) of torture are not being transferred to the prosecutor or medical examinations are not ordered, impeding the initiation of investigation and prosecution of cases of torture and other forms of ill-treatment.124

49  Another key element of an impartial and effective investigation, although not specifically mentioned in Article 12, is the involvement of the victim.125 The Committee criticized where the complainant was not promptly informed if and who investigated the complaint, at what stage the investigation was,126 and where no information about the outcome of the investigation and the evidence made available to the authorities was provided.127 In the case Ali Aarrass v Morocco the Committee noted that this effectively prevented the complainant from pursuing private prosecution and thus violates Article 12 CAT.128 The CoE Guidelines also contain this requirement providing that victims not only be informed of the investigative process and decisions made but also be entitled to request specific steps to be taken and participate in investigative actions, where appropriate. Moreover, alleged victims should be provided with legal aid, if necessary, and given the opportunity to challenge actions and omissions of investigating authorities.129

50  In addition, the Committee also urges States parties to make the outcome of the investigation public.130 Equally the Guidelines as well as the ECtHR and CPT require an element of public scrutiny of the investigation to secure accountability which may in particularly serious cases even require a public inquiry.131 For that purpose the Committee has recommended the establishment of a centralized public register of complaints of torture and other forms of ill-treatment and of the results of the investigation, to ensure the guarantee of an impartial and open investigation.132

3.4.2  Investigation Mechanism

51  While investigations by police chiefs, prison directors, and public prosecutors are not necessarily excluded by Article 12, it is advisable not to entrust the investigation solely to persons who have close personal or professional links with the persons suspected of having committed torture or ill-treatment, or who may have an interest in protecting these persons or the particular unit to which they belong.133 In this spirit the Committee (p. 354) did not find the absence of independent investigation mechanism to automatically constitute a violation134 but criticizes countries where this is the case and recommends a fully ‘independent mechanism’ to carry out investigations in the sense of Article 12.135

52  Investigation mechanisms should be institutionally and functionally independent. The Committee recommends that investigations into torture and other forms of ill-treatment are carried out ‘by independent bodies, with no institutional or hierarchical connection between the investigators and the alleged perpetrators among the police’.136

53  The Committee criticizes States where investigations are carried out by the regular police forces.137 Thus, it has expressed particular concern about the lack of effective investigation ‘due to the involvement of the Ministry of Interior Affairs in investigation of alleged violations by its subsidiary units, in contravention of a principle of impartiality’.138 The State should ensure that ‘investigations are never undertaken by personnel employed by the same ministry as the accused persons’.139

54  Where investigations are carried out by the prosecution offices, this has also been criticized by the Committee.140 The prosecution plays and important role in supervising investigations into torture and other forms of ill-treatment carried out by the police. This can however become problematic where it is not ensured that prosecutors investigating the crime and the allegations made against police officials are different.141 The Committee noted that ‘the dual nature and responsibilities of the prosecution authorities for prosecution and oversight of the proper conduct of investigations are a major barrier to the impartial investigation’ and recommended that investigations should not be carried out by any law enforcement agency but by an independent body.142 The Committee recommended to the strengthen efficiency and independence of the prosecutor and ‘ensure preservation of evidence until the arrival of the prosecutor’.143 It noted that it is important that the Office of the Public Prosecutor is also institutionally separated from the authorities against which it will investigate, meaning it should for example not be placed within military facilities.144 The personal independence of prosecutors is another important factor. A recent study comparing investigative bodies in Europe concluded that even where the police and prosecution are factually independent, their close institutional connection and feeling of collegiality diminish the impartiality of the investigation by prosecutors.145

55  The Committee therefore welcomes the creation of separate investigative units under the police or prosecution although frequently noting concerns when it comes to their practical functioning. In Sweden, a Department of Special Investigations, with (p. 355) autonomous standing, was created within the police at the national level, including seven regional investigation units.146 Kazakhstan’s establishment of a special prosecutor was welcomed although the Committee expressed concerns where reports indicate that in practice most allegations of torture and other forms of ill-treatment continue to be referred to the police/same department in which the alleged perpetrator is employed.147 The Committee also welcomed the creation of an Investigate Commission in Russia that is separate from the Procuracy with a subdivision tasked with investigating alleged crimes committed by law enforcement officials. However, it criticized the lack of impartiality in practice based on the actions of its head as well as the insufficient resources to effectively carry out its function.148

56  A step further than separate departments or units are independent police complaints commissions or ombudsmen, entities completely independent and separate from the police mandated to receive complaints and carry out investigation ex officio.149 These bodies differ in their mandate from full arrest and investigative powers to the mere right to make internal reports and recommendations, and their effectiveness has also been subject to criticism. For example, regarding Northern Ireland the Committee noted concern about ‘inconsistencies in investigation processes’ or regarding Ireland about the possibility to refer cases back to the Police Commissioner150 as obstacles to effective investigations.

57  A particular concern regarding specialized investigation mechanisms arises about the personal independence of the investigators. For example, in its Concluding Observations to Belgium the Committee stated its concern ‘by the fact that some of the investigators are former police officers, which may compromise their impartiality when they are required to conduct objective and effective investigations into allegations that acts of torture and ill-treatment have been committed by members of the police’.151 Following, the Committee recommends independent mechanism to ‘be composed of independent experts recruited from outside the police’.152 Similarly, in its Concluding Observations to New Zealand, the Committee was concerned ‘that the impartiality of the Independent Police Conduct Authority might be hampered by the inclusion of both current and former police officers’153 Consequently, regarding Ireland the Committee welcomed that the members of the Police Ombudsman ‘cannot be serving members or former members of the Garda Síochána’.154 An independent comparative study mirrored these views and concluded that unless ‘cathartic social circumstances prevail, the (p. 356) employment of retired or seconded police officers is not a desirable solution for obvious loyalties may arise even if the persons investigating police violations come from different units.’155

58  The UNSRT has also continuously stated that the main obstacle to an effective and impartial investigation was the fact that the same institution is responsible for investigating and prosecuting ordinary crimes and those committed by members of the investigating and prosecuting institutions leading to a lack transparency and a conflict of interest.156 Therefore the UNSRT recommended that ‘[a]llegations of torture and other ill-treatment should be investigated by an external investigative body, independent from those implicated in the allegation and with no institutional or hierarchical connection between the investigators and the alleged perpetrators’.157 The most recent soft law instrument on the rights of detainees, UN Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules) explicitly state that a prompt and impartial investigation shall be ‘conducted by an independent national authority’.158

59  The Istanbul Principles affirm that investigators ‘shall be independent of the suspected perpetrators’159 and moreover provide that in cases where the existing investigative procedures are inadequate or where there is a pattern of widespread torture and other forms of ill-treatment, it may be useful to consider establishing a special independent Commission of Inquiry.160 This may also complement investigations, especially where there is a lack of specific information, the capacities of the regular mechanisms are exhausted, and where a deeper understanding of the origin of the violations and ways to prevent them in the future is needed. The UNSRT has provided detailed guidance on the set-up of Commissions of Inquiries.161

60  It follows that in principle an investigation in order to be effective and impartial, should be entrusted to an independent external body without direct links to the unit in which the act of torture or ill-treatment allegedly took place. This is confirmed by the findings of a global study on the effectiveness of torture prevention measures concluding that only where the law requires the investigation by an independent body there is evidence that this has an impact on the incidence of torture.162

Moritz Birk

Footnotes:

1  SRT (Rodley) ‘Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (1999) UN Doc A/54/426, para 48: ‘impunity continues to be the principal cause of the perpetuation and encouragement of human rights violations and, in particular, torture’; SRT (Nowak) ‘Study on the phenomena of torture, cruel, inhuman or degrading treatment or punishment in the world, including an assessment of conditions of detention’ (2010) UN Doc A/HRC/13/39/Add.5, para 132; see also Richard Carver and Lisa Handley (eds), Does Torture Prevention Work? (Liverpool University Press 2016) 19; James Ross, ‘Black Letter Abuse: The US Legal Response to Torture since 9/11’ (2007) 89 International Review of the Red Cross 561. See also Richard Carver, ‘Zimbabwe: Drawing a Line through the Past’ (1993) 37 Journal of African Law 69; Leigh A Payne and Francesca Lessa (eds), Amnesty in the Age of Human Rights Accountability: Comparative and International Perspectives (Cambridge University Press 2012); Aideen Gilmore, ‘Wilton Park Conference Report on Strategies for Tackling Torture and Improving Prevention’ (Strategies for tackling torture and improving prevention, West Sussex, 30 March–1 April 2015).

2  Carver and Handley (n 1) 55ff.

3  Carver and Handley (n 1) 83ff. Mentioning as examples of independent bodies Georgia, Hungary, Norway, the UK, South Africa, and Tunisia.

4  SRT (Nowak) A/HRC/13/39/Add.5 (n 1) para 133.

5  SRT (Nowak) A/HRC/13/39/Add.5 (n 1) para 139; SRT (Nowak) ‘Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (2010) UN Doc A/65/273, para 54.

6  SRT (Nowak) A/HRC/13/39/Add.5 (n 1) para 150.

7  SRT (Nowak) A/65/273 (n 5) para 56.

8  Carver and Handley (n 1) 85.

9  SRT (Nowak) A/HRC/13/39/Add.5 (n 1) para 134.

10  See chapter 2 herein below.

11  See below Art 16, §§ 16–18.

12  Arts 10 to 13 are the only provisions explicitly mentioned in Art 16(1).

13  Chris Ingelse, The UN Committee against Torture: An Assessment (Kluwer Law International 2001) 335: ‘One important difference with the investigation obligation of article 6 par. 2 is that the investigation under articles 12 and 13 must take place irrespective of whether the suspect is known or present.’ See also above Art 2 (1) §§ 53–56 on the notion of jurisdiction.