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Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Part I Substantive Articles, Art.13 Right of Victims to Complain

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

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 15 August 2022

Subject(s):
Torture — Right to effective remedy — Treaties, interpretation

(p. 357) Article 13  Right of Victims to Complain

Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given.

1.  Introduction

While Article 12 requires States parties to carry out ex officio investigations whenever there is a suspicion of torture or other forms of ill-treatment, Article 13 requires such investigation in response to a complaint by the victim.1 Such a duty presupposes, that every person alleging to be a victim of torture and ill-treatment enjoys an effective right to complain to a competent body without fear of reprisals. This in turn is only possible if the State party takes the necessary measures to protect both the complainant and witnesses against ill-treatment and intimidation as a consequence of such complaint or witness testimony. Whereas the right to complain and the obligation of an impartial examination of such complaints is already included in Article 8 of the 1975 Declaration, the special protection of the complainant was added by the Swedish draft. The additional protection of witnesses was inserted by the Working Group in 1980.2

Contrary to the obligation to conduct criminal investigations against alleged perpetrators present in the territory of a State party which only applies to torture in the narrow sense of Article 1, the prompt and thorough investigation duties under Articles 12 and 13 also apply to cruel, inhuman or degrading treatment or punishment by virtue of the express reference in Article 16(1).

(p. 358) The phrase ‘in any territory under its jurisdiction’ shall be interpreted in the same broad sense as in Article 2(1), ‘to protect any person, citizen or non-citizen without discrimination subject to the jure or de facto control of a State party’.3

Article 13 constitutes the basic remedy of torture victims, and is aimed at having the facts established by a competent and independent authority. Depending on the facts of the case, a complaint may also lead to further action to bring the perpetrators to justice under criminal law (Articles 4 to 9). Moreover, a complaint is not only an important trigger for an investigation by the authorities but also an important chance for victims to express dissatisfaction and disapproval with their treatment and may thus contribute to the reestablishment of their sense of control and dignity.4 It can be a crucial first step for a torture survivor to be provided with other forms of reparation under civil law or rehabilitation pursuant to Article 14. In that sense the right to complain is a measure of reparation in itself and the obligation part of the procedural aspect of the right to redress in article 14.5 The interlink between Articles 12, 13, and 14 was also underlined by the Committee in its General Comment 3 to Article 14.6

In the jurisprudence of the Committee, decisions on Articles 12 and 13 usually go hand in hand. The Committee does not clearly differentiate between the two articles in a way to only apply Article 13 to cases where a complaint was made and Article 12 to cases in which an investigation was undertaken ex officio. Instead, in cases in which the State party failed to take appropriate action in response to a complaint, the Committee’s mainly examines the case in the light of Article 12 while finding a violation of Article 13 without further reasoning7 or simply stating that it ‘presupposes that the authorities provide a satisfactory response to such a complaint by launching a prompt and impartial investigation.’8

Besides the CAT the right to complain is also explicitly mentioned in Article 8 of the Inter-America Convention to Prevent and Punish Torture. Moreover, the Human (p. 359) Rights Committee and European Court of Human Rights have interpreted it as a procedural obligation of the prohibition of torture and ill-treatment9 and it is repeated in numerous soft law documents.10

In practice, there are great challenges in the implementation of the right to complain. In many countries there are no clearly designated complaint mechanisms and where complaints mechanisms exist, they all too often lack independence and effectiveness. Moreover, detainees are not or insufficiently aware of the possibility to complain, have difficulties accessing complaints mechanisms (eg due to practical obstacles, inadequate legal proceedings, and the lack of effective legal aid), mistrust their effectiveness, or refrain from making complaints in fear of reprisals.11 In resume of his six years as Special Rapporteur on Torture, Manfred Nowak stated that he ‘can hardly think of any other safeguard where the legally required protection and the actual reality differ in such a glaring and devastating way.’12

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

Declaration (9 December 1975)13

Article 8

Any person who alleges that he has been subjected to torture or other cruel, inhuman or degrading treatment or punishment by or at the instigation of a public official shall have the right to complain to, and to have his case impartially examined by, the competent authorities of the State concerned.

IAPL Draft (15 January 1978)14

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:(p. 360)

  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.

10  Original Swedish Draft (18 January 1978)15

Article 9

Each State Party shall guarantee to any individual who alleges to have been subjected within its jurisdiction to torture or other cruel, inhuman or degrading treatment or punishment by or at the instigation of its public officials, the right to complain to and to have his case impartially examined by its competent authorities without threat of further torture or other cruel, inhuman or degrading treatment or punishment.

11  United States Draft (19 December 1978)16

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.

12  Revised Swedish Draft (19 February 1979)17

Article 12

Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to and to have his case impartially examined by its competent authorities. Steps shall be taken to ensure that the complainant is protected against ill-treatment in consequence of his complaint.

2.2  Analysis of Working Group Discussions

13  In written comments on Article 9 of the original Swedish draft, Austria suggested that ‘the right to an effective remedy before a national authority’ replace the words ‘the right to complain to’. It was further suggested by Austria, together with Denmark, that the words ‘without threat of further torture or other cruel, inhuman or degrading treatment or punishment’ be deleted, since, in the opinion of Denmark, they gave a false impression that forms of threat other than torture might be used. The United States proposed a new Article which would incorporate the concepts contained in Articles 9 and 10 (the right to complain).18 The United Kingdom proposed that the word ‘jurisdiction’ be deleted and replaced by ‘territory’ and further that the words ‘without threat of further torture or cruel, inhuman or degrading treatment or punishment’ in line 5 be omitted.19

(p. 361) 14  Article 9 was renumbered Article 12 in the revised Swedish draft. 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 was pointed out by the same representative that it was necessary to ensure the protection not only of the complainant but also of any witnesses against ill-treatment in retaliation for the complaint made or testimony given. Several representatives suggested that this was necessary in order to encourage witnesses to put themselves at the disposal of the competent authorities. In this connection, one representative proposed that the words ‘or intimidation’, ‘and witnesses’, and ‘or any evidence given’ should be inserted in the last sentence of Article 12.20

15  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

3.1  Meaning of ‘right to complain’

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

3.2  Meaning of ‘promptly and impartially examined by competent authorities’

25  While ex officio investigations under Article 12 depend on the existence of a ‘reasonable ground to believe’ that an act of torture or ill-treatment has been committed, the duty to investigate under Article 13 is triggered by the mere allegation by a victim.65 This does, of course, not preclude the quick closure of such an investigation if it appears, on the basis of reliable facts, that the complaint is fabricated or clearly unfounded.66 But, as a minimum, the competent authorities shall hear the complainant and enable a doctor to examine him or her.67

26  All complaints about torture shall be examined and investigated promptly and impartially by competent authorities. As mentioned above the Committee has rarely considered a violation of Article 13 separately from Article 12. Since the standards of investigations seem to be the same as under Article 12, reference may be made to the relevant chapters.68 Equal to Article 12, Article 13 does not specify what is understood by ‘competent authorities’.69 However, this should be understood broadly to include detention authorities, higher authorities, or where necessary authorities vested with reviewing or remedial powers.70 The Committee emphasized that victims should have the possibility to access both internal mechanism as well as independent external mechanisms such as Ombudspersons, prison inspectors, independent police complaints bodies, special prosecutors or judges, administrative courts, and non-governmental organizations.71

(p. 366) 27  The former UNSRT Juan Méndez has criticized that in many States complaints mechanisms lack independence and effectiveness as they are not ‘sufficiently detached from the authority alleged to have perpetrated the ill-treatment to be deemed impartial’.72 Also Manfred Nowak at the end of his mandate as UNSRT concluded that ‘most complaints mechanisms are marred by an “impenetrable wall of conflicting interests” and lack of independence.’73 In the case Slobodan and Ljiljana Nikolić v Serbia and Montenegro the Committee found a violation of Article 13 due to the failure of the national courts to examine the case impartially. It argued that they based their decision to dismiss the complaint ‘exclusively on evidence that had been challenged by the complainants and which, according to them, was flawed by numerous inconsistencies’ without addressing these arguments.74

28  The Committee and UNSRT generally recommend the establishment of independent complaints mechanisms.75 The Committee calls for the establishment and adequate financing of National Human Rights Institutions that handle complaints.76 Their advantage is their accessibility and semi-formal character while their disadvantage is that they cannot hand down a binding and enforceable decision but merely a recommendation. Consequently, a recent comparative study found that they have little impact on the prevention of torture unless they are organically linked to judicial investigation and prosecution.77 As independent human rights institutions such as Ombuds-institutions or monitoring commissions usually lack full powers of criminal investigations, former UNSRT Manfred Nowak has recommended the establishment of a truly independent ‘police-police’ as they may be in a better position to collect the necessary evidence.78 Few countries have specialized police complaints commissions or ombudsmen, entities completely independent and separate from the police mandated to receive complaints and carry out investigation ex officio.79

28  If a complaint is rejected, reasons should be provided to the complainant and he or she should consequently have the right to review to an independent authority.80 The (p. 367) Committee stated that a lack of action on the part of the victim could not excuse failings by the State party in the investigation of accusations of torture.81 Even less should a complainant’s political activity impede the consideration of the complaint.82

29  The victim also has the right to be informed of the outcome of the complaint within an appropriate timeframe, whether an investigation was initiated and at what stage it stands.83 In several cases the Committee found that Article 13 had been violated because the State did not inform the victims of the results of the investigation and this effectively prevented them from privately initiating a prosecution that the prosecuting authority representing the state has failed to pursue (‘private prosecution’).84

3.3  Meaning of ‘protected against all ill-treatment or intimidation’

30  Since both victims and witnesses of an act of torture or ill-treatment are often afraid to complain and respectively provide evidence, the right to complain and the corresponding State obligation to investigate necessarily imply the obligation of States to protect complainants and witnesses against such reprisals. This is particularly important for detainees. The original Swedish draft had contained the phrase ‘without threat of further torture or other cruel, inhuman or degrading treatment or punishment’. Despite the proposal by Austria and Denmark to delete this phrase, it was strengthened in the revised Swedish draft by a separate sentence requiring States parties to protect the complainant against ‘ill-treatment in consequence of his complaint’. During the discussions in the Working Group in 1980 this sentence was further strengthened by also including the protection of witnesses against ill-treatment and intimidation.85

31  Many victims do not believe that making a complaint will have any effect or are afraid of suffering negative consequences. The fear of reprisals is one of the main reasons for the few complaints lodged in so many countries.86 Effectively fighting against impunity presupposes a functioning criminal justice system. Victim and witness protection are an important element of such a system and thus a precondition for justice.87

32  The Committee has made clear that ‘reprisals constitute a form of cruel treatment or punishment under article 16 of the Convention and may amount to torture in certain circumstances.’88 Article 13 speaks of ‘ill-treatment or intimidation’. Thus, complainants (p. 368) and victims also have to be protected from treatment falling below the threshold of ill-treatment. In the case Ennâma Asfari v Morocco the Committee found ‘threats following the complaint filed’ sufficient to constitute a violation of Article 13.89 The Committee has moreover expressed concern that victims declined to file a complaint against the police out of fear of counter-complaints by the police or other forms of reprisals.90

33  In the case Alexander Gerasimov v Kazakhstan the Committee declared the State to have violated its obligation to protect the complainant from threats and attempts of bribery made by law enforcement to the complainant and his family during the investigations with the aim to withdraw his complaint. These included inter alia threatening to reopen an earlier investigation, to carry out a psychiatric evaluation to determine incapacity to perceive the circumstances relevant to the case, and threats of retaliation against the family. The Committee also took into account the UNSRT’s report on the existence of a pattern and practice of intimidation in the country.91

34  Although Article 13 only speaks of victims and witnesses, the Committee has also raised concerns about harassment and intimidation of other actors such as journalists, lawyers, medical experts, and human rights defenders who report torture or ill-treatment.92 In the case of Ennâma Asfari v Morocco the Committee noted that the arrest and expulsion of the complainant’s lawyer constituted a violation of Article 13 due to his representation in connection with the denunciation of torture.93 Equally in the case Déogratias Niyonzima v Burundi, the Committee found the threats to the complainant and his family as well as the arrest of his lawyer violated Article 13.94

35  Reprisals for those who cooperate with the UN on human rights has received increased attention over the last years and efforts to put an end to this are lead by the highest level in the UN.95 In 2013, the Committee made a statement on reprisals and designated rapporteurs to follow up on any such allegations.96 Further, in 2015, both the Committee and the SPT adopted guidelines on the receipt and handling of allegations of reprisals against individuals and organizations cooperating with them.97 In the same year the chairs of ten UN treaty bodies met to condemn intimidation and reprisals against individuals and groups who cooperate with the expert committees and endorsed protection and prevention guidelines. The Guidelines against Intimidation or Reprisals (San José Guidelines) set out approaches and actions and preventive measures for the Treaty Body System.98

(p. 369) 36  The Committee has regularly criticized the lack of victim and witness protection in law and practice and called for States to take adequate measures.99 Article 13 requires that ‘steps shall be taken’ by States parties to ensure victim and witness protection without further elaborating on what this means. Recommended steps are to suspend the suspected officials from duty and to ensure that they have no involvement in the investigation and no contact with the witnesses, the victim, or the victim’s family, moving the person who made the complaint to a safe location, change of identity, providing on-site security, hotlines, and judicial orders of protection to prevent violence and harassment against complainants, witnesses, or close associates of such parties, or to assign special personnel to victims and witnesses and to arrange for regular examinations by doctors in places of detention.100

37  The Committee emphasized the importance of investigating all reports of intimidation of witnesses and setting up an appropriate protective mechanism.101 The ICTY, ICTR, and ICC have developed extensive programmes for the protection of victims and witnesses that may be used as a model for States in order to protect victims and witnesses of torture.102 For instance, according to Article 43(6) of the Rome Statute of the ICC:

The Registrar shall set up a Victims and Witnesses Unit within the Registry. This Unit shall provide, in consultation with the Office of the Prosecutor, protective measures and security arrangements, counselling and other appropriate assistance for witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses. The Unit shall include staff with expertise in trauma, including trauma related to crimes of sexual violence.

Moritz Birk

Footnotes:

1  On the relationship between the investigation duties under Articles 12,13, and on the difference to the criminal investigation required by Articles 5 to 9, see above Art 12, §§ 3, 4.

2  See below § 3.3.

3  See CAT, ‘General Comment No 2 on the Implementation of Article 2 by States Parties’ (2008) UN Doc CAT/C/GC/2, para 7; see also below Article 2, § 55.

4  Redress, ‘Taking Complaints of Torture Seriously: Rights of Victi