vulnerable to degrading treatment. All else being equal, a given level of physical abuse is more
likely to constitute “degrading or inhuman treatment or punishment” when motivated by racial
animus and/or coupled with racial epithets than when racial considerations are absent.
3.2
With respect to article 12 read alone or taken together with article 16, paragraph 1, of the
Convention, the complainant claims that the State party’s authorities failed to conduct a prompt,
impartial and comprehensive investigation into the incident at issue, notwithstanding ample
evidence that an act of torture and/or cruel, inhuman and degrading treatment or punishment had
been committed. Public prosecutors seldom institute criminal proceedings against police officers
accused of violence and/or misconduct even though such cases are in the category of those that
are officially prosecuted by the State. When the victims themselves or NGOs on their behalf file
complaints against police misconduct, public prosecutors as a rule fail to initiate proceedings.
They generally restrict themselves to requesting information from the police authorities and,
when none is forthcoming, they take no further action. Judicial dilatoriness in proceedings
involving police brutality often results in the expiration of the time period envisaged by law for
the prosecution of the case. Notwithstanding the proclaimed principle of the independence of the
judiciary, practice makes clear that public prosecutors’ offices do not operate on this principle
and that both they and the courts are not independent of the agencies and offices of the Ministry
of Internal Affairs. This is especially true with respect to incidents of police misconduct.
3.3
With respect to article 13 of the Convention, the complainant submits that the right to
complain implies not just a legal possibility to do so but also the right to an effective remedy for
the harm suffered. In view of the fact that he has received no redress for the violations at issue,
he concludes that his rights under article 13, taken alone and/or in conjunction with article 16,
paragraph 1, of the Convention, have been violated.
3.4
The complainant further claims that his rights under article 14, taken alone and/or in
conjunction with article 16, paragraph 1, of the Convention, have been violated. By failing to
provide him with a criminal remedy the State party has barred him from obtaining “fair and
adequate compensation” in a civil lawsuit, “including the means for as full a rehabilitation as
possible”. Pursuant to domestic law, the complainant had the possibility of seeking
compensation by way of two different procedures: (i) criminal proceedings, under article 103 of
the Criminal Procedure Code, which should have been instituted on the basis of his criminal
complaint; or (ii) in a civil action for damages under articles 154 and 200 of the Law on
Obligations. Since no formal criminal proceedings followed as a result of his complaint with the
Public Prosecutor, the first avenue remained closed to him. As regards the second avenue, the
complainant filed no civil action for compensation given that it is standard practice of the State
party’s courts to suspend civil cases for damages arising out of criminal offences until the
completion of the respective criminal proceedings. Had the complainant decided to sue for
damages immediately following the incident, he would have faced another insurmountable
procedural impediment caused by the inaction of the Public Prosecutor’s Office, namely,
articles 186 and 106 of the Civil Procedure Code, which stipulate that both parties to a civil
action - the plaintiff and the respondent - must be identified by name, address and other relevant
personal data. Since the complainant to date remains unaware of this information, and as it was
the duty of the Public Prosecutor’s Office to establish these facts, instituting a civil action for
compensation would have clearly been procedurally impossible and therefore rejected by the
civil court.
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