B. Views under article 22 of the Convention against Torture Communication N° 8/1991 Submitted by: Qani Halimi-Nedzibi Alleged victim: The author State party: Austria Date of adoption of Views: 18 November 1993 Subject matter: ill-treatment during detention; evidence obtained under torture water... I suffered an eye injury which required hospital treatment.” Procedural issue: non-exhaustion of domestic remedies 2.3 During the trial at first instance, author’s counsel requested all statements made to inspector J.J. to be ruled inadmissible as evidence. He referred to the declaration made by Austria when ratifying the Convention against Torture in July 1987, which reads: “Austria regards article 15 of the Convention as the legal basis for the inadmissibility provided therein of the use of statements which are established to have been made as a result of torture.” The court, however, ruled against his motion. Substantive issues: failure promptly to investigate allegations of torture, evidence obtained under torture Articles of the Convention: 12, 15 1. The author of the communication is Qani Halimi-Nedzibi, a Yugoslav citizen, currently imprisoned in Austria. He claims to be a victim of a violation of articles 12 and 15 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment by Austria. He is represented by counsel. 2.4 The Court of Appeal rejected counsel’s plea for nullity of the judgement in first instance, taking into consideration the Austrian legislation, the nonsubstantiation of the allegations of ill-treatment and the fact that the evidence given by the main witnesses remained unchallenged. The Court of Appeal decided that in the circumstances the question of direct applicability (“unmittelbare Anwendbarkeit”) of the Convention against Torture did not arise. The facts as submitted by the author 2.1 The author was arrested on 19 April 1988 and charged with drug trafficking. The trial at first instance opened on 23 January 1989. He was convicted on 4 July 1990 of having been in charge of an international drug-trafficking organization which allegedly operated from Austria between November 1985 and December 1987. The court of first instance (Landesgericht für Strafsachen) sentenced him to 20 years’ imprisonment, plus a fine of 2 million schillings, as well as a fine of 7 million schillings in place of the customs he failed to pay. On 4 July 1991, the Court of Appeal rejected the author’s appeal against his conviction, but reduced the sentence of imprisonment to a term of 18 years. The complaint 3. The author claims that the failure of the Austrian authorities promptly to investigate his allegations of torture and the refusal of the courts of first and second instance to exclude as evidence against him statements allegedly made by him and several witnesses as a result of torture constitute a violation of articles 12 and 15 of the Convention. State party’s observations and the author’s comments thereon 2.2 The author alleges that following his arrest in 1988 he and six named witnesses were maltreated, beaten and tortured by police inspector J.J., who was in charge of the criminal investigation. They were allegedly coerced to make incriminating statements. The author’s wife, who was in her third or fourth month of pregnancy, had a miscarriage shortly after she had been interrogated by police inspector J.J. The police inspector allegedly also threatened to kill the author. The author raised these matters before the investigating judge on 5 December 1988. In particular, he stated: “I was pressured so long until I admitted that the drugs belonged to me. Inspector J.J. grabbed me by the hair and threw me against the wall; he also submerged my head in a bucket of 4.1 The State party, by submission dated 27 February 1992, argued that the communication was inadmissible. 4.2 It submitted that criminal proceedings against Inspector J.J., initiated on 5 March 1990, following a complaint by the author, were still pending. The length of the investigations was attributable to the fact that difficulties had arisen in obtaining the testimonies of witnesses in the former Yugoslavia and Turkey. The State party indicated that, if Inspector J.J. would be found guilty of having illtreated detainees in order to obtain incriminating statements, the author’s case could be reopened. It 12