that acts of torture or ill-treatment have been
committed and whatever the origin of the suspicion.
Article 12 also requires that the investigation should
be prompt and impartial. The Committee observes
that promptness is essential both to ensure that the
victim cannot continue to be subjected to such acts
and also because in general, unless the methods
employed have permanent or serious effects, the
physical traces of torture, and especially of cruel,
inhuman or degrading treatment, soon disappear.
be obliged to consider it as a tacit but unequivocal
expression of the victim’s wish that the facts should
be promptly and impartially investigated, as
prescribed by this provision of the Convention.
8.7 The Committee notes, as stated above, that the
author’s complaint to the judge of the National High
Court was not examined and that, while Court N° 44
examined the complaint, it did not do so with the
requisite promptness. Indeed, more than three weeks
passed from the time that the court received the
medical report from the penitentiary centre on 17
February 1992 until the author was brought to court
and made her statement on 13 March. On that same
date the court called for Section 2 of the National
High Court to provide the findings of the medical
examinations of the author by the forensic physician
of that court, but more than two months elapsed
before on 13 May they were added to the case file.
On 2 June the judge requested the court’s own
forensic physician to report thereon, and this was
done on 28 July. On 3 August the judge summoned
the forensic physician of Court N° 2 who had
conducted the said examinations. This physician’s
statement was taken on 17 November. On that same
date the court requested the penitentiary centre to
indicate the time at which the author had been
examined in that institution and how the injuries had
developed; this information was transmitted to the
court on 23 December. Contrary to the State party’s
contention, as cited in paragraph 6.4, that there had
been “no tardiness or delay in the conduct of the
investigation”, the Committee considers that the
above chronology shows the investigative measures
not to have satisfied the requirement for promptness
in examining complaints, as prescribed by article 13
of the Convention, a defect that cannot be excused
by the lack of any protest from the author for such a
long period.
8.3 The Committee observes that when she
appeared before the National High Court on 2
February 1992, after having been held
incommunicado since 29 January, the author stated
that she had been subjected to physical and mental
ill-treatment, including the threat of rape. The Court
had before it five reports of the forensic physician
attached to the National High Court who had
examined her daily, the first four examinations
having taken place on Guardia Civil premises and
the last on the premises of the National High Court
prior to the above-mentioned court appearance.
These reports note that the author complained of
having been subjected to ill-treatment consisting of
insults, threats and blows, of having been kept
hooded for many hours and of having been forced to
remain naked, although she displayed no signs of
violence. The Committee considers that these
elements should have sufficed for the initiation of an
investigation, which did not however take place.
8.4 The Committee also observes that when, on 3
February 1992, the physician of the penitentiary
centre noted bruises and contusions on the author’s
body, this fact was brought to the attention of the
judicial authorities. However, the competent judge
did not take up the matter until 17 February and
Court N° 44 initiated preliminary proceedings only
on 21 February.
8.8 The Committee also observes that during the
preliminary proceedings, up to the time when they
were discontinued on 12 February 1993, the court
took no steps to identify and question any of the
Guardia Civil officers who might have taken part in
the acts complained of by the author. The Committee
finds this omission inexcusable, since a criminal
investigation must seek both to determine the nature
and circumstances of the alleged acts and to
establish the identity of any person who might have
been involved therein, as required by the State
party’s own domestic legislation (article 789 of the
Criminal Procedure Act). Furthermore, the
Committee observes that, when the proceedings
resumed as of October 1994, the author requested
the judge on at least two occasions to allow the
submission of evidence additional to that of the
medical experts, i.e., she requested the hearing of
witnesses as well as the possible perpetrators of the
ill-treatment, but these hearings were not ordered.
8.5 The Committee finds that the lack of
investigation of the author’s allegations, which were
made first to the forensic physician after the first
examination and during the subsequent examinations
she underwent, and then repeated before the judge of
the National High Court, and the amount of time
which passed between the reporting of the facts and
the initiation of proceedings by Court N° 44 are
incompatible with the obligation to proceed to a
prompt investigation, as provided for in article 12 of
the Convention.
8.6 The Committee observes that article 13 of the
Convention does not require either the formal
lodging of a complaint of torture under the
procedure laid down in national law or an express
statement of intent to institute and sustain a criminal
action arising from the offence, and that it is enough
for the victim simply to bring the facts to the
attention of an authority of the State for the latter to
42
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