Effective investigation of
ill-treatment
Criteria under the ECHR
Ankara / 15 April 2010
E. Svanidze
Essence of the duty to investigate
 Without a positive obligation to investigate allegations or
other indications of ill-treatment, the prohibition would be
rendered theoretical and illusory, thus allowing state
authorities and their agents to act with impunity.
Assenov v. Bulgaria
 This means that the domestic judicial authorities must on
no account be prepared to let the physical or psychological
suffering inflicted go unpunished. This is essential for
maintaining the public's confidence in, and support for, the
rule of law and for preventing any appearance of the
authorities' tolerance of or collusion in unlawful acts.
Okkali v. Turkey
Statistics of the Strasbourg
Court (1959-2009)
 Violations of Article 3 (All countries)
- Substantial:
torture - 56; inhuman/degrading - 607
- Lack of effective investigation – 190
 Violations of Article 3 (Turkey)
- Substantial:
torture - 24; inhuman/degrading - 175
- Lack of effective investigation – 74
Scope of the obligation to investigate
Obligation to investigate =
 safeguards facilitating prospects for future
investigation
+
 investigation
+
 trial (where applicable)
+
 punishment
deterrence (where applicable)
Grounds for initiation
 ‘Arguable claim’ (not evidently implausible) /
‘raise a reasonable suspicion’
Kuznetsov v. Ukraine
Gök and Güler v. Turkey
 Absence of ‘an express complaint’
 ‘Sufficiently clear indications’ that ‘ill-
treatment might have occurred’
97 members of the Gldani Congregation of
Jehovah’s Witnesses and 4 Others v. Georgia
Obligation to investigate what?
 No exhaustive list
 Torture
 Intentional infliction of physical or
mental suffering
Menesheva v. Russia
Maslova and Nalbandov v. Russia
Akkum v. Turkey
Altun v. Turkey
Obligation to investigate what?
 Serious ill-treatment
 Account for injuries sustained while under
control / use of force or weapons
Ribitsch v. Austria
Muradova v. Azerbaijan
 Indicia of any other violation of the prohibition
of ill-treatment – evidential aspect
Ramishvili and Kokhreidze v. Georgia
Need for Guarantees

Specificity of ill-treatment –
`allegations of torture in police custody are extremely
difficult for the victim to substantiate if he or she has
been isolated from the outside world, without
access to doctors, lawyers, family or friends who
could provide support and assemble the necessary
evidence
Mammadov (Jalaloglu) v. Azerbaijan

Communication of allegations and indications to
competent bodies
Guarantees
Fundamental/
procedural
- Notification of
custody
- Access to a lawyer
- Access to a doctor
- Information on rights
(outset of detention)
Practical / other
- Custody records
- Duties of
prosecutors and
judges
- Role of prison
service
- Communication with
outside bodies
Failure to Ensure the Safeguards
 Substantial violation of other rights
(Articles 5, 6)
Orhan v. Turkey
Pishchalnikov v. Russia; Gök and Güler v. Turkey
 Lack of effective investigation
Mammadov (Jalaloglu) v. Azerbaijan
 Evidential implications
establishment of substantial violations
Vergelskyy v. Ukraine; Salmanoğlu and Polattaş v.
Turkey
Access to a Lawyer
 Lawyer of the detainee’s choice
 Confidential meetings
 Attend interrogations
 Availability of legal aid for persons unable to
pay for legal representation
Mammadov (Jalaloglu) v. Azerbaijan
Pishchalnikov v. Russia
Gök and Güler v. Turkey
Access to a doctor
 Two main purposes
- communication of information
- securing evidence
 CPT standards
case law of the Strasbourg Court
Salmanoğlu and Polattaş v. Turkey
(established a breach of the CPT standards)
 Istanbul Protocol
Access to a doctor
 Doctor of own choice (+ provided by detaining
authorities)
 On admission (24 hours) + on request




Out of earshot and sight
Accurate documentation
Availability of medical records
Doctor of own choice = forensic doctors
(without delays)
Valeriu and Nicolae Rosca v. Moldova
Salmanoğlu and Polattaş v. Turkey
Other Guarantees
 Comprehensive custody records
CPT’s 12th General Report
Barabanshchikov v. Russia
Breabin v. Moldova
 Prosecutors and judges should seek to provide
for the communication of information and
evidence relating to ill-treatment. They must take
resolute action in response to information that illtreatment may have been experienced by persons
brought before them.
CPT’s 14th General Report
Ahmet Ozkan v. Turkey
Main Criteria
 Independence and impartiality
 thoroughness (comprehensive character)
 promptness
 competence
 Victim involvement and public scrutiny
+
 adequacy of punishment
=
 Ddetermination
Independence and Impartiality
 From whom?
- from those implicated in the events
 Who?
- Conduct investigation and take decisions
Ramsahai v. the Netherlands
- Carry out certain investigative actions
Mikheev v. Russia
- Experts
Barabanshchikov v. Russia
- Special bodies
İpek v. Turkey
Independence and Impartiality
 Aspects of independence
-hierarchical / institutional
Rehbock v. Slovenia
Barbu Anghelescu v. Romania
-practical
Gharibashvili v. Georgia
 Impartiality
- personal
- functional
Barabanshchikov v. Russia
2008 Opinion of the Council of Europe Human Rights
Commissioner
Thoroughness
 ’reasonably necessary’ ’genuine efforts’
 Inventory of typical investigative
activities/ evidence:
- Detailed and exhaustive statements
of alleged victims
Cobzaru v. Romania
- Appropriate questioning / identification of
those responsible
Labita v. Italy
Thoroughness
 confidential and accurate medical (preferably
forensic)
physical
and
examinations of alleged victims
psychological
 other medical evidence, including records from
places of detention and health care services
Mammadov v. Azerbaijan
Rosca v. Moldova
Barabanshchikov v. Russia
 Istanbul Protocol (physical + psychological)
Thoroughness
 appropriate
witness
statements,
possibly
including statements of other detainees,
custodial staff, members of the public, law
enforcement officers and other officials
Mikheev v. Russia, 2006
 examination of the scene for material evidence,
including implements used in
fingerprints, body fluids and fibres
 reconstruction of relevant events
Mikheev v. Russia, 2006
Kozinets v. Ukraine, 2007
ill-treatment,
Thoroughness
 examination of custody records, decisions,
case files and other documentation related to
the relevant incident
 Procedural failures that contribute to the
collapse of subsequent legal proceedings
constitute failures to take all reasonable steps
Maslova and Nalbandov v. Russia
 Information and evidence relating
to illtreatment must be assessed in a thorough,
consistent and objective manner
Muradova v. Azerbaijan
Promptness
 Promptness – with regard to particular
investigative activities
Labita v. Italy
Menesheva v. Russia
 Promptness – with regard to the whole set
of procedures
Salmanoğlu and Polattaş v. Turkey
Bati and Others v. Turkey
(time-barred / statute-barred)
‘exemplary diligence and promptness’
Adequacy of competence
 Competent to
- establish the circumstances
- punish those responsible
Hugh Jordan v. the UK
- protect victims, witnesses and other
persons participating in the procedures
Bekos and Koutropoulos v. Greece, 2005
Public Scrutiny
 Maximum - public inquiry/ investigation
CPT’s 14th General Report
 Minimum – victim involvement
 Applicable to those who allege ill-
treatment
Kucheruk v. Ukraine
 To the extent necessary to protect legitimate
interests
Victim Involvement
- informed about progress and relevant
decisions taken / access to the case file
Kucheruk v. Ukraine
- request specific steps to be taken
Labita v. Italy
- adversarial and public judicial review
procedure
Gharibashvili v. Georgia, 2008