CAT/C/71/D/759/2016 Complainant’s comments on the State party’s observations on admissibility 5.1 On 28 March 2017, the complainant submitted his comments on the State party’s observations. With regard to the exhaustion of domestic remedies, the complainant reiterates his reference to article 22 (5) (b) of the Convention and to the Committee’s jurisprudence whereby the requirement to have exhausted domestic remedies does not apply if the processing of such remedies has been unreasonably prolonged or is unlikely to bring effective relief.12 The complainant notes that, contrary to the State party’s account, he did attempt to exhaust domestic remedies, but these have been unreasonably prolonged and have proved ineffective for the purpose of having the acts of torture of which he was a victim investigated. 5.2 At the time of submission of the communication, almost four years after the complainant filed his complaint with Alarcón Judicial District Public Prosecutor’s Office, the acts of torture had not been investigated at either the local or the national level. The complainant points out that the proceedings initiated both within the State Prosecutor’s Office and within the Office of the Attorney General of the Republic concerned the offence of bodily injury and not the offence of torture. The State Prosecutor’s Office refused to initiate an investigation in respect of the former offence for almost two years. 5.3 With reference to the State party’s comments on preliminary investigation ALA/SC/05/0328/2013, the complainant notes that, although he filed a complaint of torture, the preliminary investigation initiated concerned offences of bodily injury, damage to a vehicle and making threats, despite the fact that, in his written statement, he describes acts that, pursuant to article 1 (1) of the Convention, are considered to constitute torture. 5.4 The complainant brought an indirect amparo action against the Office of the Attorney General of the Republic following its refusal to investigate the acts of torture and the Eleventh District Court for Amparo in Criminal Matters ruled that the offence of torture had not been investigated (see paragraph 2.7 above), in that “the offence of bodily injury attributed to the municipal police officers has no link whatsoever with the separate offence of torture, these being criminal offences of a different nature”.13 The fact that the official of the Alarcón Public Prosecutor’s Office did not investigate the torture suffered by the complainant also prevented the application of the Istanbul Protocol. 5.5 According to the complainant, when the State party states that the complainant should have appealed the decision of the first-instance court of the criminal division of Alarcón Judicial District to refuse to issue arrest warrants, it is disregarding the fact that the Alarcón Public Prosecutor’s Office did not investigate the offence of torture and that, accordingly, no criminal proceedings have been brought for this offence, and that the arrest warrants issued against the three police officers were not for the offence of torture. Moreover, the State party ignores the fact that, according to the Code of Criminal Procedure for Guerrero State, victims are not parties to criminal proceedings and therefore cannot act autonomously but only as coadjutors of the Public Prosecutor’s Office, and that article 132 of this Code establishes that decisions refusing the issue of an arrest warrant can be appealed only by the Public Prosecutor’s Office. 5.6 The complainant adds that the indirect amparo application to which the State party refers would also not have been effective in his case, since, in order for protection to be provided, the offence needs to have been investigated, 14 and in this case there was no investigation for the offence of torture. 5.7 The complainant recalls that, under the Mexican Constitution and the Code of Criminal Procedure for Guerrero State, the investigation of offences and the instigation of criminal proceedings before the courts fall under the exclusive competence of the Public Prosecutor’s Office and not the victim of the offence.15 The Committee has stated in this regard that article 13 of the Convention does not require either the formal lodging of a 12 13 14 15 GE.21-13347 Ramírez Martínez et al. v. Mexico (CAT/C/55/D/500/2012), para. 16.4. Judgment of 30 June 2016, page 3, annex 4, of the Eleventh District Court for Amparo in Criminal Matters. Case file No. 298/2016. Amparo Act, art. 107 (VII). Mexican Constitution, arts. 21 and 102; Code of Criminal Procedure for Guerrero State, art. 1. 9