CAT/C/47/D/368/2008 10.4 The Committee recalls that, under the Convention, the prohibition of ill-treatment is absolute and that its prevention is an effective and non-derogable measure.5 The Committee considers that it falls to the State party to explain the circumstances surrounding Mr. Sonko’s death, considering that he was alive when he was pulled out of the water. The Committee further considers that, regardless of whether or not the Civil Guard officers punctured Mr. Sonko’s dinghy or at what distance from the shore he was expelled from the boat, he was placed in a situation that caused his death. As for the legal classification of the way in which Mr. Sonko was treated on 26 September 2007, the Committee considers that while the subjection of Mr. Sonko to physical and mental suffering prior to his death, aggravated by his particular vulnerability as a migrant, does not constitute a violation of article 1 of the Convention, it does exceed the threshold of cruel, inhuman or degrading treatment or punishment, under the terms of article 16 of the Convention. 10.5 The Committee considers that, although the complainant has alleged a violation only of articles 1 and 16 of the Convention, the present complaint concerns circumstances on which article 12 of the Convention may have a bearing as well. The Committee also observes that both the complainant and the State party have made observations regarding the judicial inquiry initiated by the State party. 10.6 In this respect, the Committee observes that the State party notified a relative of the victim 16 months after the inquiry had begun. It also observes that the complainant (and/or a family member) was not joined as a party to the legal proceedings. On other occasions, the Committee has already stated that, under the Convention, a victim is not required to lodge a formal complaint in the national courts when torture or cruel, inhuman or degrading treatment has occurred and that it is sufficient for the facts to have been brought to the attention of Government authorities.6 Consequently, the Committee is of the view that it was not indispensable for the complainant (and/or another family member) to be joined as a party to the proceedings for the State party to fulfil its obligation under article 12 of the Convention, and that the obligation to investigate indications of ill-treatment is an absolute duty under the Convention and falls to the State. 10.7 The complexity of the case notwithstanding, the Committee reminds the State party that it has an obligation to undertake a prompt and full investigation whenever there are indications that acts have been committed that may constitute cruel, inhuman or degrading treatment. Such an investigation should be aimed at determining the nature of the reported events, the circumstances surrounding them and the identity of whoever may have participated in them.7 The investigation of the facts was initiated on 28 September 2007 and was definitively shelved on 12 May 2009, without a prompt and impartial investigation of the facts being undertaken. The Committee is therefore of the view that the investigation conducted by the authorities of the State party did not meet the requirements set forth in article 12 of the Convention. 10.8 The Committee, acting under article 22, paragraph 7, of the Convention, considers that the information before it discloses a violation of articles 12 and 16 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. 10.9 The Committee urges the State party to carry out a suitable investigation of the events that occurred on 26 September 2007, to prosecute and punish any persons found to be responsible for those acts, and to provide effective remedy, which shall include adequate 5 6 7 10 General comment No. 2 of the Committee (see footnote 4 above), para. 3. See communication No. 6/1990, Henri Unai Parot v. Spain, decision of 2 May 1995; and communication No. 59/1996, Encarnación Blanco Abad v. Spain, decision of 14 May 1998. See, for example, communication No. 261/2005, Besim Osmani v. Serbia, decision issued on 8 May 2009, para. 10.7. GE.12-40869