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Investigation of Ill-Treatment, Guidelines on European Standards EFFECTIVE EFFECTIVE INVESTIGATION OF ILL-TREATMENT – – ILL-TREATMENT OF EFFECTIVE INVESTIGATION INVESTIGATION OF ILL-TREATMENT Guidelines on European standards Guidelines on European standards Guidelines on European Erik Svanidze Second Edition EFFECTIVE INVESTIGATION OF ILL-TREATMENT Guidelines on European standards Erik Svanidze Second Edition Council of Europe The opinions expressed in this work are the responsibility of the authors and do not necessarily reflect the official policy of the Council of Europe. All requests concerning the reproduction or translation of all or part of this document should be addressed to the Directorate of Communication (F-67075 Strasbourg Cedex or [email protected]). All other correspondence concerning this document should be addressed to the Directorate General of Human Rights and Rule of Law). Cover and layout: Documents and publications production Department (SPDP), Council of Europe © Council of Europe, June 2014 Printed at the Council of Europe Contents PREFACE 5 ABBREVIATIONS 8 GUIDELINES ON INTERNATIONAL STANDARDS 9 EXPLANATORY NOTE 17 Legal basis 17 I. The origins of the obligation to investigate ill-treatment 18 1.1 The absolute prohibition of ill-treatment 18 1.2 The obligation to investigate ill-treatment 19 II. Facilitating prospects for effective investigation and access to investigative mechanisms 25 2.1 General considerations 25 2.2 The fundamental safeguards against ill-treatment 25 2.3 Other arrangements 30 III. The investigation: grounds and purposes 38 3.1 Grounds for investigation 38 3.2 Principal purposes of investigations 42 IV. Measuring effectiveness: the key criteria 43 4.1 Independence and impartiality 43 4.2 Thoroughness 46 4.3 Promptness 53 4.4 Competence 55 4.5 Victim involvement and public scrutiny 57 V. Forms of investigation and punishment 59 5.1 Procedural forms of investigation 59 5.2 Investigative systems 61 VI. Guaranteeing effectiveness 64 VII. Obligation to deter 65 7.1 Legislative framework 65 7.2 Adequacy of punishment 66 APPENDICES 73 Appendix 1: Combating impunity 73 Appendix 2: Independent and effective determination of complaints against the police 81 Appendix 3: Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 104 Appendix 4: Implementation of Article 2 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or punishment by States parties 108 Appendix 5: Guidelines of the Committee of Ministers of the Council of Europe on eradicating impunity for serious human rights violations 118 Appendix 6: Documenting and reporting medical evidence of ill-treatment 129 ► Page 3 Preface he absolute prohibition of torture and inhuman or degrading treatment or punishment1 clearly places a legal obligation upon member states T to combat impunity where it is breached. Contemporary concerns sur- rounding impunity have been based on many recent complaints received by international human rights mechanisms citing failures by states to properly hold to account the perpetrators of ill-treatment. The European Court of Human Rights (“the Court”), for example, continues to make a considerable number of adverse judgments in this area, despite its clear elaboration of the relevant standards over many years. Thus, by the beginning of 2013, in addition to 1284 substantive breaches of Article 3 of the European Convention on Human Rights (“ECHR”)2, there were 452 findings of violation in respect of the procedural aspect of the same Article imposing the requirement for states to effectively investigate allegations and other indica- tions of serious ill-treatment.3 The problem has also been highlighted by the Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”), particularly in its 14th General Report4 and in many of its visit reports. 1. Hereinafter collectively referred to as “ill-treatment”. 2. Article 3 ECHR prohibits torture and inhuman and degrading treatment. 3. Violations by Article and by respondent State (1959-2012), available on echr.coe.int/ Documents/Stats_violation_1959_2012_ENG.pdf, accessed on 18.12.2012. 4. See its section entitled ‘Combating Impunity’. ► Page 5 Against this background, two consecutive Joint Programmes entitled “Combating ill-treatment and impunity” and “Reinforcing the fight against ill-treatment and impunity” were carried out by the Council of Europe and the European Union in 2009-2013. The programmes, of which this publica- tion forms part, focused on police and law enforcement activities, as well as relevant aspects of the functioning of penitentiary systems in five Council of Europe member states: Republic of Armenia, Azerbaijan, Georgia, Republic of Moldova and Ukraine.5 This publication comprises two parts: f Part I highlights the relevant guidelines on international standards as regards effective investigation of ill-treatment (the “Guidelines”); f Part II is the Explanatory Note to the Guidelines explaining the steps required in order for states to comply with the Guidelines. The first edition of this work was prepared in 2009. The current (second) edition has been developed with the view to update it in line with both the advancement of the case law of the Court and the development of derivative standards since 2009, including the Guidelines of the Committee of Ministers of the Council of Europe on eradicating impunity for serious human rights violations6 and the substantial section of the CPT’s 23rd General Report called “Documenting and reporting medical evidence of ill-treatment”.7 Thus, the second edition of the work proposes an updated comprehensive summary of contemporary standards dealing with the procedural duties originating from the prohibition of torture and other forms of ill-treatment. It is expected that they will serve as a useful summary of the relevant norms and will therefore provide guidance as to how they may best be attained. 5. The author was a long-term consultant to the Joint Programme. The views and opinions expressed in this publication are those of the author and do not engage the responsibility of the Council of Europe and/or the European Commission. They should not be regarded as placing upon the legal instruments mentioned any official interpretation capable of binding Member States, the Council of Europe’s statutory organs or any organ set up by virtue of the European Convention on Human Rights or the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. 6. Adopted by the Committee of Ministers of the Council of Europe on 30 March 2011 at the 1110th meeting of the Ministers’ Deputies. See appendix 5 of the current publication. 7. CPT/Inf (2013) 29, paras. 71-84. See appendix 6 of the current publication. Effective investigation of ill-treatment –Guidelines ► Page 6 The Guidelines focus upon ill-treatment by law enforcement officials8, however it is envisaged that they might have useful application in other areas, such as the prison systems, and in relation to the procedures for protection of other human rights, including combating impunity for other “serious human rights violations”. 8. Article 1 of the Code of Conduct for Law Enforcement Officials, adopted by the UN General Assembly resolution 34/169 of 17 December 1979, defines this area in the following terms: “(a) The term “law enforcement officials”, includes all officers of the law, whether appointed or elected, who exercise police powers, especially the powers of arrest or detention. (b) In countries where police powers are exercised by military authorities, whether uni- formed or not, or by State security forces, the definition of law enforcement officials shall be regarded as including officers of such services. (c) Service to the community is intended to include particularly the rendition of services of assistance to those members of the community who by reason of personal, economic, social or other emergencies are in need of immediate aid. (d) This provision is intended to cover not only all violent, predatory and harmful acts, but extends to the full range of prohibitions under penal statutes. It extends to conduct by persons not capable of incurring criminal liability.” In the Guidelines and Explanatory Note, the terms “police” and “law enforcement” are used interchangeably. As to the obligation to investigate ill-treatment by private individuals, see 97 members of the Gldani Congregation of Jehovah’s Witnesses and 4 Others v. Georgia, Judgment of 3 May 2007, application no. 71156/01, paras. 96 and 97. Preface ► Page 7 Abbreviations CAT United Nations Committee against Torture CEHRC Human Rights Commissioner of the Council of Europe CPT European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ECHR European Convention for the Protection of Human Rights and Fundamental Freedoms ECPT European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment HRC UN Human Rights Committee ICCPR International Covenant on Civil and Political Rights Istanbul Protocol Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment OPCAT Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment UN United Nations UNCAT United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ► Page 8 Guidelines
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