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 ( ) Violations of Article 3 (All countries) - Substantial: torture - 56; inhuman/degrading Lack of effective investigation – 190 Violations of Article 3 (Turkey) - Substantial: torture - 24; inhuman/degrading 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 12 th 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 ill- treatment may have been experienced by persons brought before them. CPT’s 14 th 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 psychological examinations of alleged victims 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 ill-treatment, fingerprints, body fluids and fibres reconstruction of relevant events Mikheev v. Russia, 2006 Kozinets v. Ukraine, 2007

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 ill- treatment 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 14 th 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