PART B – International standards in the Istanbul Protocol
Civil and Political Rights84 as has the European Court of Human Rights.85
The treaty bodies have approached the issue
of impartiality by considering both procedural and institutional aspects. Impartiality
may relate to the proceedings or delibera86
tions of the investigating body, or in respect of any suspicion of, or apparent bias
87
that may arise from conflicts of interest.
In its consideration of State party reports,
the UN Committee against Torture criticised
the absence of independent bodies to investigate torture, particularly in respect of
torture by the police, the institution that ordinarily would be tasked with investigating
torture.88 Similarly, in a number of its concluding observations on State party reports,
the UN Human Rights Committee expressed
concern about the lack of impartial investigations of torture complaints, including the
absence of independent oversight mechanisms, and urged States parties to establish
independent bodies competent to receive,
investigate and adjudicate all complaints on
torture and ill-treatment.89
The European Court of Human Rights, when
assessing the effectiveness of investigations,
has often held that investigations lacked independence, e.g. where members of the same
division or detachment as those implicated
in the allegations were undertaking the in90
vestigation. Furthermore, the Court has
noted that independence means not only a
lack of hierarchical or institutional connection, but also practical independence.91
The Inter-American Commission on Human Rights has also observed that the lack
of independence negatively impacts on impartiality, which is a minimum requirement
for any investigation process,92 and this approach has been confirmed in the jurisprudence of the Inter-American Court.93
The European Committee for the Prevention
of Torture has repeatedly stressed the importance of impartial and independent investi-
25
gations as one of the means of strengthening
the protection of detainees from torture and
inhuman treatment. As noted following its
visit to Cyprus in 2000 “[…]it is axiomatic that
the investigations conducted into such cases
[torture] should not only be, but also be seen
94
to be, totally independent and impartial.”
It further observed, in relation to Spain “[…]
that the investigation of complaints by the
internal accountability mechanisms of the
National Police and the Civil Guard cannot
be said to be independent and impartial”95
and emphasised “[…]that it is indispensable
that the persons responsible for carrying
out investigations into complaints against
the police should be truly independent from
those implicated in the events.”96
3. EFFECTIVE INVESTIGATIONS SHOULD BE CONDUCTED
“THOROUGHLY”: SUBSTANCE
OF INVESTIGATIONS
There is ample jurisprudence to indicate
that investigations must be “thorough” and
“effective”. Whereas the term “thorough”
generally relates to the scope and nature of
the steps taken in carrying out an investigation, “effective” relates to the quality of the
investigation.
The UN Committee against Torture observed
that investigations must be effective and
97
thorough, and that investigations must
seek to ascertain the facts and establish the
identity of any alleged perpetrators.98 The
UN Human Rights Committee has consistently held that States have a duty to investigate cases of torture and disappearances
thoroughly.99
The European Court of Human Rights held
that a thorough investigation should be capable of leading to the identification and
punishment of those responsible for any ill
treatment and that it “must be ‘effective’ in
practice as well as in law, in particular in the
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