3.1.5 Decisions to terminate or to refuse to initiate investigations into illtreatment can only be taken by an independent, competent authority upon thorough and prompt consideration of all the relevant facts.
Such decisions should be subject to appropriate scrutiny and challengeable by means of a public and adversarial judicial review process.
A determination that an allegation is groundless is tantamount to a refusal
to investigate and cuts the alleged victim off from the rights corollary to the
obligation to investigate. Such a determination must therefore stand up to
the highest degree of scrutiny.
3.2 Principal purposes of investigations
3.2.1 Effective investigation requires genuine efforts to be made to properly establish the relevant facts and, where appropriate, to identify
and punish those responsible for ill-treatment.
The Guidelines envisage two main purposes of investigation: to establish the
facts and, if necessary, to punish perpetrators. They recognise that the facts
may not be borne out in all cases, and that at times there will be insufficient
proof to hold perpetrators responsible.96
However, the authorities must make a genuine attempt to achieve results.
This Guideline reflects the standard language used by the Court in this area:
“An obligation to investigate “is not an obligation of result, but of means”: not
every investigation should necessarily be successful or come to a conclusion
which coincides with the claimant’s account of events; however, it should in
principle be capable of leading to the establishment of the facts of the case
and, if the allegations prove to be true, to the identification and punishment of
those responsible. Thus, the investigation of serious allegations of ill-treatment
must be thorough. That means that the authorities must always make a serious
attempt to find out what happened and should not rely on hasty or ill-founded
conclusions to close their investigation or as the basis of their decisions.”97
3.2.2 Investigating authorities could also be tasked with identifying and
implementing measures to prevent recurrences of ill-treatment.
The investigating authorities’ role in implementing preventive measures is
highlighted by both the Istanbul Principles98 and the CEHRC.99 Although this
96. See also Guidelines 3.1.1 and 3.1.5.
97. Barabanshchikov v. Russia, Judgment of 8 January 2009, application no. 36220/02, para. 54.
98. Principle 1.b of the Istanbul Principles.
99. CEHRC’s Opinion, para. 22.
Effective investigation of ill-treatment – Guidelines ► Page 42
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