–2–
27.
In many States visited by the CPT, torture and acts such as ill-treatment in the performance
of a duty, coercion to obtain a statement, abuse of authority, etc. constitute specific criminal
offences which are prosecuted ex officio. The CPT welcomes the existence of legal provisions of
this kind.
Nevertheless, the CPT has found that, in certain countries, prosecutorial authorities have
considerable discretion with regard to the opening of a preliminary investigation when information
related to possible ill-treatment of persons deprived of their liberty comes to light. In the
Committee’s view, even in the absence of a formal complaint, such authorities should be under a
legal obligation to undertake an investigation whenever they receive credible information, from
any source, that ill-treatment of persons deprived of their liberty may have occurred. In this
connection, the legal framework for accountability will be strengthened if public officials (police
officers, prison directors, etc.) are formally required to notify the relevant authorities immediately
whenever they become aware of any information indicative of ill-treatment.
28.
The existence of a suitable legal framework is not of itself sufficient to guarantee that
appropriate action will be taken in respect of cases of possible ill-treatment. Due attention must be
given to sensitising the relevant authorities to the important obligations which are incumbent
upon them.
When persons detained by law enforcement agencies are brought before prosecutorial and
judicial authorities, this provides a valuable opportunity for such persons to indicate whether or not
they have been ill-treated. Further, even in the absence of an express complaint, these authorities
will be in a position to take action in good time if there are other indicia (e.g. visible injuries; a
person's general appearance or demeanour) that ill-treatment might have occurred.
However, in the course of its visits, the CPT frequently meets persons who allege that they
had complained of ill-treatment to prosecutors and/or judges, but that their interlocutors had shown
little interest in the matter, even when they had displayed injuries on visible parts of the body. The
existence of such a scenario has on occasion been borne out by the CPT's findings. By way of
example, the Committee recently examined a judicial case file which, in addition to recording
allegations of ill-treatment, also took note of various bruises and swellings on the face, legs and
back of the person concerned. Despite the fact that the information recorded in the file could be said
to amount to prima-facie evidence of ill-treatment, the relevant authorities did not institute an
investigation and were not able to give a plausible explanation for their inaction.
It is also not uncommon for persons to allege that they had been frightened to complain
about ill-treatment, because of the presence at the hearing with the prosecutor or judge of the very
same law enforcement officials who had interrogated them, or that they had been expressly
discouraged from doing so, on the grounds that it would not be in their best interests.
It is imperative that prosecutorial and judicial authorities take resolute action when any
information indicative of ill-treatment emerges. Similarly, they must conduct the proceedings in
such a way that the persons concerned have a real opportunity to make a statement about the
manner in which they have been treated.
29.
Adequately assessing allegations of ill-treatment will often be a far from straightforward
matter. Certain types of ill-treatment (such as asphyxiation or electric shocks) do not leave obvious
marks, or will not, if carried out with a degree of proficiency. Similarly, making persons stand,
kneel or crouch in an uncomfortable position for hours on end, or depriving them of sleep, is
unlikely to leave clearly identifiable traces. Even blows to the body may leave only slight physical
marks, difficult to observe and quick to fade. Consequently, when allegations of such forms of ill-