The Court has endorsed the CPT standards in this area, as well as some of
the stipulations of the Istanbul Protocol, as important elements in fulfilling
the obligation to effectively investigate, particularly from the perspective of
gathering evidence.49 Moreover, medical professionals owe obligations both
to the persons they treat or examine and to society at large, which has an
interest in ensuring that justice is done and that perpetrators of abuse are
brought to justice.50
2.2.5 The right of access to a doctor of the detainee’s choice demands
direct and unimpeded access to the services of recognised forensic
doctors.
Forensic medical evidence is often crucial to the effective investigation of
alleged ill-treatment. Its importance is repeatedly emphasised by the Court:
“The authorities must take whatever reasonable steps they can to secure the
evidence concerning the incident, including inter alia forensic evidence. Any
deficiency in the investigation which undermines its ability to establish the
cause of injury or the person responsible will risk falling foul of this standard
(see Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 134, ECHR 2004‑IV
(extracts)). The Court therefore considers that the failure to secure the forensic
evidence in a timely manner was one of the important factors contributing to
the ineffectiveness of the investigation in the present case. A timely medical
examination could have enabled the medical expert to reach a more definitive
conclusion as to the time of infliction and cause of the injuries.”51
Similarly, the CPT emphasises that there should be no “barriers” between forensic doctors and persons alleging ill-treatment, whether or not the services of
such doctors have been formally requested by investigative, prosecutorial or
other officials.52 It has further specified that persons who allege ill-treatment
by members of law enforcement or security agencies should be able to be
examined by a recognised forensic doctor at their own initiative, without prior
authorisation from an investigating or judicial authority, and regardless of
whether they are deprived of their liberty.53
49. Mehmet Eren v. Turkey, Judgment of 6 April 2004, application no. 21689/93, para. 355.
50. See also the comments on Guideline 2.3.4, below.
51. Mammadov (Jalaloglu) v. Azerbaijan, Judgment of 11 January 2007, application no. 34445/04,
para. 74.
52. See, for example, the CPT’s Report on the visit to Albania carried out from 23 May to 3 June
2005, CPT/Inf (2006) 24, para. 49.
53. See CPT’s Report on the visit to Russia carried out from 27 April to 6 May 2011, CPT/Inf
(2013) 1, para. 28.
Explanatory note ► Page 29
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