The prohibition of torture and ill-treatment places the state under an obligation to investigate allegations of violations of torture and ill-treatment. This principle has been established in the jurisprudence of the different supervisory systems:
European Court of Human Rights
Application No. 90/1997/874/1086
Judgement of 28 October 1998
Keywords: torture - duty to investigate - effective investigation - reasonable time - Roma population
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AS TO THE FACTS
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62. On 19 September 1992, while gambling in the market square in Shoumen, Mr Assenov (then aged 14) was arrested by an off-duty policeman and taken to the nearby bus station, where the officer called for back-up.
63. Subsequently Mr Assenov’s parents, who were both working at the bus station, came and asked for their son’s release. Mr Ivanov, as a way of showing that he would administer any necessary punishment, took a strip of plywood and hit his son. At some point two other policemen arrived. The applicants allege that these officers hit the boy with truncheons. A dispute ensued between the boy’s parents and the police, although it appears that Mr Assenov himself was unaggressive and compliant. He and his father were handcuffed and forced into a police car. They were taken to the police station, where they were detained for approximately two hours before being released without charge. Mr Assenov alleged to have been beaten with a toy pistol and with truncheons and pummelled in the stomach by officers at the police station.
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FINAL SUBMISSIONS TO THE COURT
64. In their memorial and at the oral hearing, the Government asked the Court to reject the applicants’ claims.
Mr Assenov asked the Court to find violations of Articles 3, 5, 6, 13 and, together with his parents, 25 of the Convention, and all three applicants asked to be awarded just satisfaction under Article 50.
AS TO THE LAW
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B. Merits
1. Alleged violation of Article 3 of the Convention
65. Mr Assenov alleged that the events of 19 September 1992 had given rise to violations of Article 3 of the Convention, which states:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
He contended that this Article had been breached on two separate grounds. First, he asked the Court itself to examine the medical evidence and witness statements which, he alleged, demonstrated that he had been severely beaten by police officers.
Secondly, joined by the interveners (see paragraph 5 above), he asked the Court to declare that wherever there were reasonable grounds to believe that an act of torture or inhuman or degrading treatment or punishment had been committed, the failure of the competent domestic authorities to carry out a prompt and impartial investigation in itself constituted a violation of Article 3.
66. The Government pointed out that the applicant’s medical certificate was unreliable because it had been issued two days after the incident in question. In any case, the injuries which it described, and the absence of any certificate relating to Mr Ivanov, were consistent with the witnesses’ accounts of the father having beaten his son with a thin strip of wood.
67. In assessing the evidence before it, the Commission had regard to the principle that where an individual alleges to have been injured by ill-treatment in custody, the Government are under an obligation to provide a complete and sufficient explanation as to how the injuries were caused (see the Ribitsch v. Austria judgment of 4 December 1995, Series A no. 336, pp. 25–26,§ 34, and the above-mentioned Aksoy judgment, p. 2278,§ 61). It accepted, inter alia, that a quarrel had erupted at the bus station between the police officers and Mr Ivanov, that the latter had hit his son with a plywood strip in an effort to show that he would punish the boy himself and that both applicants were then detained at the police station for approximately two hours. However, more than four and a half years after these events, and owing to the lack of a sufficiently independent and timely investigation by the domestic authorities, the Commission was not able to establish which version of events was the more credible. It did not, therefore, find any violation of Article 3.
68. Article 3, as the Court has observed on many occasions, enshrines one of the fundamental values of democratic society. Even in the most difficult of circumstances, such as the fight against terrorism or crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 even in the event of a public emergency threatening the life of the nation (see the above-mentioned Aksoy judgment, p. 2278,§ 62).
69. The Court recalls that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim. In respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 (see the Tekin v. Turkey judgment of 9 June 1998, Reports 1998-IV, pp. 1517–18,§ 52 and 53).
70. The Court considers that the degree of bruising found by the doctor who examined Mr Assenov (see paragraph 11 above) indicates that the latter’s injuries, whether caused by his father or by the police, were sufficiently serious to amount to ill-treatment within the scope of Article 3 (see, for example, the A. v. the United Kingdom judgment of 23 September 1998, Reports 1998-VI, p. 2699,§ 21, and the above-mentioned Ribitsch judgment, pp. 9 and 26,§ 13 and 39). It remains to be considered whether the State should be held responsible under Article 3 in respect of these injuries.
(a) Alleged ill-treatment by the police
71. The Court recalls that the Commission was unable, on the basis of the evidence before it, to establish how the applicant’s injuries were caused (see paragraph 92 above).
72. The Court observes that the doctor who examined Mr Assenov two days after the latter was released from police custody found that the bruises on his body indicated that he had been beaten with a solid object (see paragraph 26 above). The applicant alleged that these injuries had been caused by police officers who beat him with truncheons.
73. The Court considers that, since it is not disputed that the applicant was the victim of violence from some source on 19 September 1992, and since there is no suggestion of anything untoward having occurred between that date and his medical examination, it is fair to assume that he sustained the above bruising on 19 September 1992 in connection with his arrest.
74. The Court further notes that the arresting officer testified in his witness statement that he had seen Mr Ivanov hit his son on the back two or three times with a narrow wooden stick (see paragraph 14 above). It was not denied by the applicants that Mr Ivanov hit Mr Assenov in this way, although it was denied that he did so with the force or frequency required to cause the bruising described in the medical report. Following Mrs Ivanova’s complaint on 2 October 1992, an agent of the DDIA interviewed the applicants and took the above written statement from the arresting officer and statements from the other two officers involved, neither of whom had been present when Mr Ivanov hit Mr Assenov (ibid.). The only independent witness contacted by the DDIA investigator at that time could not remember any disturbance at the bus station (see paragraph 15 above).
In July 1993, unknown to the applicants, witness statements were taken from two other bystanders at the bus station. One of these had only a vague recollection of the events in question. The other, a bus driver, recalled seeing Mr Ivanov hit his son with a lath, although he did not specify how prolonged or violent a beating this had been (see paragraph 28 above).
None of the witnesses, except the applicants, said that they had seen police officers hitting Mr Assenov.
75. The Court, like the Commission (see paragraph 92 above), finds it impossible to establish on the basis of the evidence before it whether or not the applicant’s injuries were caused by the police as he alleged.
(b) Adequacy of the investigation
76. The Court does, however, consider that the medical evidence, Mr Assenov’s testimony, the fact that he was detained for two hours at the police station, and the lack of any account from any witness of Mr Ivanov beating his son with sufficient severity to cause the reported bruising, together raise a reasonable suspicion that these injuries may have been caused by the police.
77. The Court considers that, in these circumstances, where an individual raises an arguable claim that he has been seriously ill-treated by the police or other such agents of the State unlawfully and in breach of Article 3, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ? [the] Convention”, requires by implication that there should be an effective official investigation. This investigation, as with that under Article 2, should be capable of leading to the identification and punishment of those responsible (see, in relation to Article 2 of the Convention, the McCann and Others v. the United Kingdom judgment of 27 September 1995, Series A no. 324, p. 49,§ 161, the Kaya v. Turkey judgment of 19 February 1998, Reports 1998-I, p. 324,§ 86, and the Ya_a v. Turkey judgment of 2 September 1998, Reports 1998-VI, p. 2438,§ 98). If this were not the case, the general legal prohibition of torture and inhuman and degrading treatment and punishment, despite its fundamental importance (see paragraph 93 above), would be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity.
78. The Court notes that following Mrs Ivanova’s complaint, the State authorities did carry out some investigation into the applicant’s allegations. It is not, however, persuaded that this investigation was sufficiently thorough and effective to meet the above requirements of Article 3. [?].
79. The initial investigation carried out by the regional military prosecution office (RMPO) and that of the general military prosecution office (GMPO) were even more cursory. The Court finds it particularly striking that the GMPO could conclude, without any evidence that Mr Assenov had not been compliant, and without any explanation as to the nature of the alleged disobedience, that “even if the blows were administered on the body of the juvenile, they occurred as a result of disobedience to police orders” (see paragraph 26 above). To make such an assumption runs contrary to the principle under Article 3 that, in respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct is in principle an infringement of his rights (see paragraph 94 above).
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80. Against this background, in view of the lack of a thorough and effective investigation into the applicant’s arguable claim that he had been beaten by police officers, the Court finds that there has been a violation of Article 3 of the Convention.
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Comment
It is notable that in this case the Court did not find a violation of Article 3 based on the allegations of ill-treatment by the police, but because of the state’s failure to carry out an effective official investigation into the applicants’ allegations of ill-treatment (see also Kuznetsov v. Ukraine , Application No. 39042/97, Judgement of 29 April 2003 below).
Similarly, in Labita v. Italy (Application No. 26772/95, Judgement of 6 April 2000) the Court stated:
131. The Court considers that where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in [?] [the] Convention”, requires by implication that there should be an effective official investigation. As with an investigation under Article 2, such investigation should be capable of leading to the identification and punishment of those responsible [?]. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance [?] be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see the Assenov and Others judgment cited above, p. 3290, paragraph 102).
The Human Rights Committee has also elaborated on the duty to investigate allegations of torture and ill-treatment.
Casafranca v. Peru
Human Rights Committee
Communication No. 981/2001
Views of 19 September 2003
Keywords: arbitrary arrest or detention – torture - liberty of person - security of person - fair trial - non-retroactivity
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The facts as submitted by the author
2.1 The victim was a student at the Faculty of Dentistry of the Inca Garcilaso de la Vega University, and also worked in the family restaurant. On 3 October 1986 he was arrested [?] without any arrest warrant, and without the detainee having been arrested in flagrante delicto; he was taken to the offices of DIRCOTE, [footnote omitted] where he was locked in the cells while the police made inquiries.
2.2 According to the author, the victim was subjected to cruel and savage physical, psychological and mental torture. [?] the prisoner states that he was tortured to obtain certain statements. Specifically, he tells of how they bent back his hands and twisted his arms, hoisted him up in the air, put a pistol in his mouth, took him to the beach and attempted to drown him, and later attempted to rape him by inserting a candle in his anus. On 7 September 2001 Mr. Gómez Casafranca reported the torture to which he had been subjected while at DIRCOTE on 3 October 1986 to the National Police Department of Human Rights. On 17 September 2001 the Department issued a finding in which it noted that the victim had been advised by counsel and that he had not submitted a complaint in a timely manner. Mr. Casafranca was charged with homicide, bodily injury and terrorist acts. The author maintains that her son always maintained his innocence and did not even know the other accused persons who, possibly owing to the torture to which they too were subjected, implicated him in the offence.
2.3 According to the author, the police, in an utterly arbitrary act, brought charges against the prisoner [?] implicating him in acts which he neither committed nor participated in. According to the DIRCOTE police attestation, Ricardo Ernesto Gómez Casafranca, alias “Tomás”, was the military militia commander of a terrorist cell of Sendero Luminoso [?]. The author was also accused of other offences, including offences against human life, the person and health, and against company property. [?]
2.7 On 11 September 1997 the police arrested Mr. Ricardo Ernesto Gómez Casafranca at his home for an appearance at further oral proceedings based on the same charges; this time, on 30 January 1998, he was sentenced to 25 years’ imprisonment [?].
The complaint
3.1 The author claims violation of the right of her son to protection of the person and to physical, psychological and mental integrity and of his right not to be subjected to torture while being held. [?].
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Consideration of the merits
7.1 With regard to the author’s claims that her son was subjected to ill-treatment while being held at the police station, the Committee notes that, while the author does not provide further information in this regard, the attached copies of the records of the oral proceedings of 30 January 1998 reveal how the victim described in detail before the judge the acts of torture to which he had been subjected. Taking into account the fact that the State party has not provided any additional information in this regard, or initiated an official investigation of the events described, the Committee finds that there was a violation of article 7 of the Covenant.
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Comment
Like the European Court in the Assenov case (above) the Human Rights Committee did not find a violation based on the allegations of torture, but because of the state’s failure to provide information or initiate an official investigation into the applicants’ allegations. See also Zelaya Blanco v. Nicaragua , Communication No 328/1988, Views of 20 July 1994 where the Committee emphasises the state’s duty to investigate.