OX FOR D C OM M E N TA R I E S ON

I N T E R N AT ION A L L AW
General Editors: Professor Philip Alston, Professor of International Law
at New York University, and Professor Vaughan Lowe, Chichele Professor
of Public International Law in the University of Oxford and Fellow of
All Souls College, Oxford.

The United Nations Convention

Against Torture

A Commentary

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00-Nowak-Prelims.indd ii 7/10/2007 7:50:33 AM
 The United Nations
Convention Against
Torture
A Commentary

M A N FR E D NOWA K
E L I Z A BE T H Mc A RT H U R

with the contribution of

Kerstin Buchinger
Julia Kozma
Roland Schmidt
Isabelle Tschan
Ludwig Boltzmann Institute of Human Rights Vienna

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 Article 12. Ex Officio Investigations 431

4. Issues of Interpretation
4.1 Meaning of ‘reasonable ground to believe’
49 As was stated above,⁵⁶ there are ample opportunities to find a ‘reason-
able ground’ to believe that an act of torture or cruel, inhuman or degrading
treatment has been committed. Apart from a complaint by the victim, a fellow
detainee might have witnessed or even only heard of a torture practice, lawyers,
doctors, nurses or family members of detainees, NGOs or national human
rights commissions might be invited to report frankly about every single case
of torture or cruel, inhuman or degrading treatment which was brought to
their attention. The most efficient way to find out whether and to what extent
torture and cruel, inhuman or degrading treatment is practised in any given
country is to ratify the OP, establish a truly independent national preventive
mechanism (NPM) which regularly carries out unannounced visits to every
place of detention and which conducts private interviews with detainees, and
to request this body either to investigate on its own every single allegation of
torture and cruel, inhuman or degrading treatment or to bring such allega-
tions to another independent authority competent to proceed to a prompt and
impartial investigation. A government genuinely interested in knowing the
truth might also open up its detention facilities to unannounced visits by com-
petent NGOs or invite the UN Special Rapporteur on Torture to carry out a
fact finding mission in full compliance with his terms of reference.
50 The main diff erence between Articles 13 and 12 is that the latter shifts the
responsibility to initiate an investigation from the victim to the State authorities
most directly involved. Since torture and cruel, inhuman or degrading treat-
ment usually takes place behind closed doors without any outside witnesses,
and since the victims are often too afraid to complain officially about such
practices, the heads of police stations, interrogation offices, pre-trial detention
facilities and prisons have a particular responsibility to prevent torture. One of
the most efficient ways to prevent torture is actively to monitor and investigate
the situation in the respective detention facility and to take the necessary dis-
ciplinary or other action in every single case of ill-treatment or excessive use of
force. If torture occurs in a given detention facility, and its head is not aware
of such practices or fails to take the necessary preventive measures, he or she
might be held accountable for committing the crime of torture by consent or
acquiescence.

⁵⁶ See above, 1.

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 432 United Nations Convention Against Torture
51 One of the most effective measures to prevent torture and cruel, inhu-
man or degrading treatment is a thorough and independent medical examina-
tion of every detainee when arriving at a particular detention facility, when
leaving this facility and at any other time, in particular at his or her own
request. If a person arrives healthy at a police station and leaves the same police
station two days later with certain bruises or injuries, this is a ‘reasonable
ground’ to believe that an act of torture or cruel, inhuman or degrading treat-
ment has been committed and the burden of proof shifts to the police officers
responsible for the detention and interrogation.⁵⁷ Whether the injuries were
self-inflicted or the result of a legitimate use of force by the respective police
officers or the result of ill-treatment needs to be established by a prompt and
impartial investigation before an independent body.
52 Often, detainees do not dare to report torture and ill-treatment while
being held at the place where this treatment occurred. As soon as they are
transferred from the police or criminal investigation station to a pre-trial
detention centre, they might wish to lodge a complaint. For a torture victim to
speak about his or her traumatic experience it is necessary to create conditions
where the victim feels safe from reprisals and trustful that his or her allegations
are taken seriously. Again, the best person to talk to might be the doctor who
carries out a medical examination upon arrival.⁵⁸ Not surprisingly, torture
victims do not immediately start to speak openly. Often, the initiative must
come from the doctor. When detecting a recent scar or injury during a routine
examination, it is up to the doctor to ask where the scar or injury came from.
If the explanation given by the detainee is not convincing, there is ‘reasonable
ground’ to proceed to a more thorough investigation.
53 The Committee repeatedly stressed the obligation of States parties to
investigate detailed allegations from national and international NGOs⁵⁹ and
the fact that the decision on whether to conduct an investigation is not discre-
tionary.⁶⁰ If there are reasonable grounds, an investigation must be instigated
regardless of the origin of suspicion.⁶¹ In the leading case of Blanco Abad v.
Spain,⁶² the Committee found a violation of Article 12 on the ground that
the High Court had not started an investigation despite having before it five

⁵⁷ See also the European Court of Human Rights case of Ribitsch v. Austria (1996) 21 EHRR
573.
⁵⁸ See also the facts in Blanco Abad v. Spain, Comm. No. 59/1996. See above, 3.2.
⁵⁹ See e.g. A/57/44, § 5(i) and the facts in M’Barek v. Tunisia, No. 60/1996, above, 3.2.
⁶⁰ See e.g. CAT/C/SR.145, §10 and SR.168, § 40. See also the concluding observations on the
third periodic report of France, CAT/C/FRA/CO/3, § 20.
⁶¹ No. 59/1996, § 8.2. See above, 3.2
⁶² Ibid, § 8.2. See above, 3.2.

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 Article 12. Ex Officio Investigations 433
reports of a forensic physician which noted that she had ‘complained of hav-
ing been subjected to ill-treatment consisting of insults, threats and blows,
of having been kept hooded for many hours and of having been forced to
remain naked, although she displayed no signs of violence. The Committee
considers that these elements should have sufficed for the initiation of an
investigation, which did not however take place.’⁶³ In the Roma pogrom case
of Dzemajl et al. v. Yugoslavia, the Committee found a violation of Article 12
on the ground that, despite the presence of a number of police officers both
at the time and at the scene of the pogrom, no proper investigations had been
initiated and no person nor any member of the police forces had been tried
by the courts.⁶⁴ In Thabti v. Tunisia, the Committee confirmed its earlier
jurisprudence and noted that Article 12 places an obligation on the authori-
ties to ‘proceed automatically’ to a prompt and impartial investigation whenever
there are reasonable grounds to believe that an act of torture or ill-treatment
has been committed, ‘no special importance being attached to the grounds
for suspicion’.⁶⁵
54 In its concluding observations after having examined the second peri-
odic report of the United States, the Committee in May 2006 interpreted the
provision of Article 12 to require the US authorities ‘to promptly, thoroughly
and impartially investigate any responsibility of senior military and civilian
officials authorizing, acquiescing or consenting in any way, to acts of torture
committed by their subordinates’.⁶⁶ Since most of the controversial interro-
gation methods used in Guantánamo Bay, Abu Ghraib and similar detention
centres for suspected terrorists were explicitly authorized by Defense Secretary
Donald Rumsfeld,⁶⁷ it seems evident that his particular responsibility should
be subject of such an independent investigation required by Article 12.

4.2 Meaning of ‘prompt investigation’

55 In the case of a suspicion of torture or ill-treatment, a prompt investiga-
tion is of particular importance. First of all, the victim might be in danger of
further torture. A prompt official investigation by the head of the respective
detention centre or an external monitoring body might prevent further torture,
above all as a means of reprisal. Secondly, the physical traces of torture and ill-

⁶³ Ibid, § 8.3.
⁶⁴ No. 161/2000, § 9.4. See above, 3.2.
⁶⁵ No. 187/2001, § 10.4. See above, 3.2.
⁶⁶ CAT/C/USA/CO/2, § 19.
⁶⁷ See e.g. the report of five special procedures on the situation of detainees at Guantánamo Bay
detention facilities, E/CN.4/2006/120; see also Nowak, (2006) 28(4) HRQ 809–841.

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 434 United Nations Convention Against Torture
treatment, if any, might soon disappear.⁶⁸ The obligation under Article 12 to
proceed to a prompt investigation, therefore, means that as soon as there is a
suspicion of a case of torture or ill-treatment, investigations shall be initiated
immediately or without any delay, i.e. within the next hours or days.⁶⁹
56 In most cases in which the Committee found a violation of Article 12, no
investigations had been carried out at all or only after long periods. In Halimi-
Nedyibi v. Austria, the Committee found that a delay of 15 months before any
investigation into the allegations of torture and ill-treatment had started was
‘unreasonably long’ and therefore a violation of the requirement of a prompt
investigation as laid down in Article 12.⁷⁰ In M’Barek v. Tunisia, it held that a
delay of over ten months ‘after the foreign non-governmental organization had
raised the alarm and over two months after the Driss Commission’s report’ was
excessive and, therefore constituted a violation of Article 12.⁷¹
57 The only case in which a considerably shorter period of delay, namely
some two weeks, was held to constitute a violation of Article 12, is the well-
known case of Blanco Abad v. Spain which concerns ill-treatment by officers
of the Guardia Civil between 29 January and 2 February 1992, where the
complainant had been kept incommunicado under anti-terrorist legislation.⁷²
Signs of her ill-treatment were noticed by a doctor at a Women’s Penitentiary
Centre who had examined her upon arrival on 3 February 1992. The prison
director, in complying with the relevant obligations under Articles 12 and 13,
immediately brought the physician’s report to the attention of the competent
judge. The Committee observed that ‘when, on 3 February, the physician of
the penitentiary centre noted bruises and contusions on the author’s body, this
fact was brought to the attention of the judicial authorities. However, the com-
petent judge did not take up the matter until 17 February and Court No. 44
initiated preliminary proceedings only on 21 February.’⁷³ This delay was held
to be ‘incompatible with the obligation to proceed to a prompt investigation,
as provided for in article 12 of the Convention’.⁷⁴ This finding clearly confirms
the interpretation that a prompt investigation, in order to be effective, must be
initiated within hours or, at the most, a few days after the suspicion of torture
or ill-treatment has arisen.

⁶⁸ Cf. Wendland, 52.

⁶⁹ This corresponds also to the meaning of ‘promptly’ in Arts. 9 and 14 CCPR: cf. Nowak,
CCPR-Commentary, 210–240, 302–357.
⁷⁰ No. 8/1991, § 15. See above, 3.2.
⁷¹ No. 60/1996, §§ 11.5–11.7. See above, 3.2.
⁷² No. 59/1996; see above, 3.2.
⁷³ Ibid, § 8.4.
⁷⁴ Ibid, § 8.5.

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