A/HRC/13/39/Add.5
if the examination upon arrival in a pre-trial facility established that a detainee had been
tortured. The explanation I received was that the authorities of the pre-trial facility would
be afraid to be made responsible for the condition of the detainee and did not want to bear
the costs needed to treat the victim while in detention, since the injuries were inflicted by
the police. Admitting the victim and initiating an inquiry into the police’s accountability
was apparently not an option.72
131. In general, there is a pressing need to step up the overall involvement of forensic
medical science across the various sectors of the criminal justice cycle, and also to places
where persons are at particular risk, including administrative detention and psychiatric
institutions. If police officers, prison wardens, prosecutors, and judges be under the
obligation to request proper forensic medical examinations as a standard procedure
whenever there are suspicions or allegations of ill-treatment, victims of torture would be in
a considerable stronger position to obtain acknowledgement of their suffering, to hold
perpetrators accountable and to prevent torture in general.
(d)
Impunity
132. When looking for an explanation for the scope and persistence of torture, one has to
acknowledge that impunity is one of the main reasons why torture is so strongly
entrenched. As much as impunity is a widespread phenomenon for past crimes of torture,
today’s impunity is one of the root causes for the continuation of torture in the future.
133. The magnitude of impunity has been for me one of the most disappointing findings
of my tenure as Special Rapporteur on Torture. In most States I visited, impunity was close
to total, despite an undeniable, sometimes routine, widespread or even systematic practice
of torture. In a few countries, the Government was not able to provide me with one single
case in which a perpetrator of torture had been held accountable under criminal law and
punished with adequate sanctions.
134. Combating impunity is the most important objective of the UN Convention against
Torture of 1984. Under articles 4 to 9 CAT all 146 States parties have far reaching
obligations to criminalize torture, to establish a variety of jurisdictions in relation to the
crime of torture, including universal jurisdiction, and to take a number of effective
measures aimed at bringing suspected perpetrators of torture to justice.. Any individual case
of impunity consequently constitutes a violation of States parties’ international human
rights obligations. Furthermore, impunity for acts of torture clearly constitutes a violation
of the obligation of States Parties under article 2(1) to take effective judicial measures to
prevent acts of torture.
135. In order to successfully proceed from an initial investigation to an eventual
conviction and punishment of the perpetrator reflecting the gravity of the crime, several
obstacles to the pursuit of justice have to be overcome. As outlined earlier, victims are in
most cases not in the position to file a complaint without putting themselves into further
danger and risk suffering reprisals. In order to counterbalance the vulnerability of the
victim and the de facto inaccessibility of complaints mechanisms, particularly in the context
of detention, article 12 CAT shifts the responsibility to initiate an investigation from the
victim to the State authority most directly involved.73 Accordingly, “each State Party shall
ensure that its competent authorities proceed to a prompt and impartial investigation,
wherever there is reasonable ground to believe that an act of torture has been committed in
any territory under its jurisdiction.”
72
73
A/HRC/7/3/Add.7, Appendix I, para. 14. A/HRC/10/44/Add.3, Appendix II, para 20.
Nowak and McArthur, Article 12, para 52.
35
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