85
32.
For an investigation into possible ill-treatment to be effective, it is essential that the
persons responsible for carrying it out are independent from those implicated in the events. In
certain jurisdictions, all complaints of ill-treatment against the police or other public officials
must be submitted to a prosecutor, and it is the latter – not the police – who determines
whether a preliminary investigation should be opened into a complaint; the CPT welcomes
such an approach. However, it is not unusual for the day-to-day responsibility for the
operational conduct of an investigation to revert to serving law enforcement officials. The
involvement of the prosecutor is then limited to instructing those officials to carry out
inquiries, acknowledging receipt of the result, and deciding whether or not criminal charges
should be brought. It is important to ensure that the officials concerned are not from the same
service as those who are the subject of the investigation. Ideally, those entrusted with the
operational conduct of the investigation should be completely independent from the agency
implicated. Further, prosecutorial authorities must exercise close and effective supervision of
the operational conduct of an investigation into possible ill-treatment by public officials. They
should be provided with clear guidance as to the manner in which they are expected to
supervise such investigations.
33.
An investigation into possible ill-treatment by public officials must comply with the
criterion of thoroughness. It must be capable of leading to a determination of whether force or
other methods used were or were not justified under the circumstances, and to the
identification and, if appropriate, the punishment of those concerned. This is not an obligation
of result, but of means. It requires that all reasonable steps be taken to secure evidence
concerning the incident, including, inter alia, to identify and interview the alleged victims,
suspects and eyewitnesses (e.g. police officers on duty, other detainees), to seize instruments
which may have been used in ill-treatment, and to gather forensic evidence. Where applicable,
there should be an autopsy which provides a complete and accurate record of injury and an
objective analysis of clinical findings, including the cause of death.
The investigation must also be conducted in a comprehensive manner. The CPT has
come across cases when, in spite of numerous alleged incidents and facts related to possible
ill-treatment, the scope of the investigation was unduly circumscribed, significant episodes
and surrounding circumstances indicative of ill-treatment being disregarded.
34.
In this context, the CPT wishes to make clear that it has strong misgivings regarding
the practice observed in many countries of law enforcement officials or prison officers
wearing masks or balaclavas when performing arrests, carrying out interrogations, or dealing
with prison disturbances; this will clearly hamper the identification of potential suspects if and
when allegations of ill-treatment arise. This practice should be strictly controlled and only
used in exceptional cases which are duly justified; it will rarely, if ever, be justified in a prison
context.
Similarly, the practice found in certain countries of blindfolding persons in police
custody should be expressly prohibited; it can severely hamper the bringing of criminal
proceedings against those who torture or ill-treat, and has done so in some cases known to the
CPT.
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