16 The text of Article 13 indicates that ‘any individual who alleges’ that he or she has been subjected to torture or other forms of ill-treatment has an independent right to complain to a competent authority. This wording must be understood broadly, neither requiring a specific form, nor an expression of intent to initiate criminal proceedings.21 The victim only needs to bring the matter to the attention of the authorities for the State to be under an obligation to investigate.22 In the early case of Parot v Spain, the Committee noted that ‘in principle, article 13 of the Convention does not require the formal submission of a complaint of torture. It is sufficient for torture only to have been alleged by the victim for the state to be under an obligation to promptly and impartially examine the allegation.’23 This was confirmed in the case Blanco Abad v. Spain where the Committee stated that the ‘Convention does not require either the formal lodging of a complaint of torture under the procedure laid down in national law or an express statement of intent to institute and sustain a criminal action arising from the offence, and that it is enough for the victim simply to bring the facts to the attention of an authority of the State for the latter to be obliged to consider it as a tacit but unequivocal expression of the victim’s wish that the facts should be promptly and impartially investigated, as prescribed by this provision of the Convention.’24 This liberal interpretation, which clearly conforms to the (p. 362) object and purpose of this provision, was confirmed in later cases against Tunisia25 and Serbia and Montenegro.26
17 Article 13 only speaks of a right of an alleged victim to bring forward a complaint (‘any individual who alleges’). Contrary to that Article 22 explicitly states that complaints may be submitted ‘on behalf of individuals’ and the Rules of Procedure state that ‘‘[t]he complaint should be submitted by the individual himself/herself or by his/her relatives or designated representatives, or by others on behalf of an alleged victim when it appears that the victim is unable personally to submit the complaint’.27 Also other international standards explicitly extend the right to submit a complaint to the legal counsel or members of the family whenever it cannot be exercised by the victim.28 Although it appears that the Committee has not expressed itself on the issue, it is not reasonable to interpret the right to complain restrictively, limiting it to the person alleging to be a victim only. Otherwise it could be easily rendered ineffective.
18 It is not sufficient that the right is legally guaranteed, it must also be accessible and effective in practice. In the State reporting procedure, the Committee expressed concerns about undue restrictions of the right to complain, such as not accepting complaints directly from alleged victims but only upon referral by other mechanisms,29 a statute of limitation of thirty-five days for complaining,30 the imposition of strict criteria for the substantiation of complaints,31 the lack of access to pen and papers in places of detention,32 high fees charged by medical professionals to complete the complaint form, and the insistence that the form must first be filled out at the police station.33 It also criticized situations when police officers using excessive force during demonstrations cannot be identified because they wear masks or do not carry identification badges.34 Making a complaint should not impose unnecessary hardship on complainants and their relatives that prevents or discourages them from seeking redress, such as financial burden. States need to provide assistance and support to minimize any hardship.35 Complaints forms need to be made available free of charge and States need to ensure that that the right of a complainant is not dependent on his or her economic situation.36 In general, the right to lodge a complaint and the corresponding State obligation to carry out a prompt and impartial investigation should not be dependent on any discretion of State authorities.37
19 States must provide the necessary procedures for victims of torture and ill-treatment to exercise their right to complain in a non-bureaucratic manner without fear of reprisals. (p. 363) Particular measures need to be taken in relation to detainees. In places of detention, there should be the possibility to lodge both oral and written, ideally even anonymous, complaints. Internal mechanisms should be immediately accessible to detainees on a daily basis.38 Complaints need to be responded to as quickly as possible and forwarded to the competent investigation body.39 In principle, every person working in a detention facility has the obligation to forward a complaint to a competent authority. Unless a special procedure has been established to receive such complaints, this may be doctors who carry out medical examinations, prison chaplains, social workers, or resident prosecutors. In addition, every prisoner shall be allowed to make a request or complaint regarding his or her treatment, without censorship as to substance, to the central prison administration, specifically where a complaint is sensitive or not resolved.40 The Committee noted that different internal and external inspection services of the police and prison administration competent to receive complaints may create a ‘lack of clarity’ when lodging a complaint.41 Thus, it recommended that States establish a central mechanism specifically devoted to allegations of torture and other forms of ill-treatment.42
20 Detainees should also be informed about their right to complain about torture and ill-treatment and about the respective procedures available to them in a language they understand, including an oral explanation.43 The Committee expressed concern where victims are not aware of complaints procedures beyond reporting to the police who may refuse to accept them.44 Moreover, the information could be facilitated by numerous measures such as displaying posters in police stations and communal areas of places of detention, a section on complaints procedures in the establishment’s house rules, information leaflets issued by complaints bodies, or information videos.45 Effective procedural rights, such as prompt access to family members, counsel and a doctor of their choice, as well as the right to lodge a writ of habeas corpus to an independent judge further facilitate the exercise of the right to complain about torture and other forms of ill-treatment.46
21 The individual making a complain needs to be protected. Therefore confidential access to complaints mechanisms is important,47 eg by means of installing complaints (p. 364) boxes in appropriate areas. Complaints should only be accessed by persons who can ensure confidentiality and should not be filtered by staff who have control over detainees.48 The prohibition of punishment and duty to protect from reprisals is especially important to ensure the accessibility of complaints mechanisms and is therefore explicitly mentioned in Article 13 (see below).49 Complaints mechanisms must be made known and accessible to the public and persons deprived of liberty through wide publication and display in all places of detention.50 Accessibility should be ensured by means such as telephone hotlines or confidential complaints boxes in detention facilities.51 In Georgia, for example the Committee against Torture appreciated the existence of a twenty-four-hour hotline for torture-related complaints and stressed the importance of disseminating information about its availability.52
22 Victims should receive adequate assistance to bring forward complaints, notably professionally qualified legal advice and assistance.53 Where they lack the necessary resources to make complaints, they should be provided with adequate legal aid and should be granted access to all relevant evidence or information concerning the acts of torture or ill-treatment.54 In Mounir Hammouche v Tunisia the State refused to provide a copy of the autopsy report and denied access to the results of an investigation, both of which had been allegedly issued regarding the death of the torture victim. As an investigation was allegedly already under way, Tunisia has precluded the possibility of any criminal action to be brought by the family thus violating Article 13.55
23 Specific measures should be taken for persons in a situation of vulnerability, including those with limited communication abilities.56 The complaints mechanisms should be appropriately adapted to be accessible to people with particular needs, such as juveniles and persons with psychosocial and/or learning disabilities. Appropriate measures include the possibility of being assisted by a person or body that can help them to understand and exercise their rights,57 providing information in written, oral, easy-to read-formats, Braille, sign languages, displaying it prominently in all places of deprivation of liberty, and, with regards to indigent persons providing them with writing material, envelopes, and postage free of charge.58 The positive measures should take into account gender aspects, ensuring that victims of sexual and gender-based violence are able to bring forward their complaints.59
24 The Committee encourages States to provide and to make publicly accessible statistics on the number of complaints, investigations, prosecutions, and the results of such proceedings of alleged perpetrators of acts of torture or ill-treatment within law (p. 365) enforcement, police, military, and prison staff.60 For that purpose it recommends setting up a centralized public register of all complaints launched, including information ‘on the corresponding investigations, trials and criminal and/or disciplinary penalties imposed’61 and on means of redress, including compensation and rehabilitation provided to the victims.62 In some cases, the Committee also recommended that this information should specify details, such as the sex, age, ethnicity, and (alleged) crime of the complainant and/or which authority conducted the investigation following the complaint.63 Such data collection has the purpose to assist in and facilitate the monitoring of the implementation of the Convention.64