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the investigation must, among other things, seek to
“recover and preserve evidence, including medical
evidence, related to the alleged torture to aid in any
potential prosecution of those responsible” and, to
this end, should order a medical investigation as
soon as possible.
In this context, the Committee Against Torture
has recognised that, “Securing the victim’s right
to redress requires that a State party’s competent
authorities promptly, effectively and impartially
investigate and examine the case of any individual
who alleges that she or he has been subjected
to torture or ill-treatment. Such an investigation
should include as a standard measure an
independent physical and psychological forensic
examination as provided for in the Manual on the
Effective Investigation and Documentation of
Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (the Istanbul Protocol).”
[See Committee Against Torture, General Comment
N°3 (2012), §25.]
In the case of Khaled Ben M’Barek v. Tunisia,
concerning the death of Faisal Baraket due to
police torture, the Committee Against Torture
noted significant shortcomings on the part of the
judge, the Public Prosecutor, and the Minister of
Justice. In particular, the Committee stated that
the Public Prosecutor had committed a breach
of the duty of impartiality required of him by his
obligation to give equal weight to both accusation
and defence “when he failed to appeal against the
decision to dismiss the case”. The Committee went
on to note: “In the Tunisian system the Minister of
Justice has authority over the Public Prosecutor. It
could therefore have ordered him to appeal, but
failed to do so”. [See Khaled Ben M’Barek v. Tunisia,
Committee Against Torture Communication
N°60/1996, Views of 10 November 1999, UN Doc.
CAT/C/23/D/60/1996, §11.10.] More recently, in the
report of his visit to Tunisia in 2012, the UN Special
Rapporteur on torture noted, “a pattern of a lack
of timely and adequate investigation of torture
allegations by prosecutors or investigative judges”.
[See Report of the Special Rapporteur on torture
and other cruel, inhuman or degrading treatment
or punishment, Mission to Tunisia, 2 February 2012,
UN Doc. A/HRC/19/61/Add.1, §29.]
In its concluding observations on Egypt, the
Committee Against Torture pointed to the “many
consistent reports received concerning the
persistence of the phenomenon of torture and illtreatment of detainees by law enforcement officials,
and the absence of measures to ensure effective

protection and prompt and impartial investigations.”
[See Conclusions and recommendations of the
Committee Against Torture, Egypt, 23 December
2002, UN Doc. CAT/C/CR/29/4, §5.] A Fact-Finding
Commission was established by the ousted
President, Mohamed Morsi, to investigate human
rights abuses committed from 25 January 2011 until
30 June 2012. The Commission, generally considered
as impartial and credible, documented many cases
of individuals: “arrested by military police and
intelligence officers and subjected to torture and
other ill-treatment in military prisons”; “who died
from torture while in military custody”; and “who
died from torture while in military prisons and were
then buried as “unknown” after the authorisation of
the public prosecution services”. The Commission
submitted its report to the Prosecutor General
with a view to investigating all cases documented
in the report. So far, the Prosecutor General has
failed to investigate, order the investigation of or
commence any criminal proceedings in relation to,
the documented abuses. [For further details see the
ICJ’s submission to the Universal Periodic Review of
Egypt.]
When prosecutors fail to discharge their duties by
adequately investigating and prosecuting acts of
torture and other ill-treatment, courts are under a
duty to protect the rights of the persons deprived
of their liberty not to be subjected to these acts.
Courts must investigate or order the investigation
of allegations of torture and other ill-treatment.
They must not admit as evidence statements and
“confessions” alleged to have been obtained as a
result of torture or other ill-treatment. They should
also require, before the admission of such evidence,
that the prosecution prove beyond reasonable
doubt that the “confessions” were obtained by
lawful means.
In the “UAE 94 case”, 94 individuals were prosecuted
before the State Security Chamber of the UAE
Supreme Court on charges of “opposing the
Constitution and the basic principles of the UAE
ruling system and establishing and managing an
organization with the aim of committing crimes
that harm State security”. On 6 May 2013, 71 of the
detainees addressed a complaint to the President
of the Court asking him to investigate the incidents
of torture to which they had been allegedly
subjected. The methods of torture they referred to
in the complaint included severe beatings, pulling
out the detainees’ hair, sleep deprivation, exposure
to extreme light during the day and night, death
threats and other threats, insults and other verbal
abuse, and prolonged solitary confinement that

The Middle East and North Africa: A Torture-Free Zone

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