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