16
31.
The CPT has had occasion, in a number of its
visit reports, to assess the activities of the authorities
empowered to conduct official investigations and bring
criminal or disciplinary charges in cases involving
allegations of ill-treatment. In so doing, the Committee
takes account of the case law of the European Court of
Human Rights as well as the standards contained in a
panoply of international instruments. It is now a well
established principle that effective investigations,
capable of leading to the identification and punishment
of those responsible for ill-treatment, are essential to
give practical meaning to the prohibition of torture and
inhuman or degrading treatment or punishment.
Complying with this principle implies that the
authorities responsible for investigations are provided
with all the necessary resources, both human and
material. Further, investigations must meet certain
basic criteria.
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.
CPT: 14TH GENERAL REPORT
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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