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The Committee
against Torture, established under Article 17 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Meeting on 14 November 2003,
Having concluded its consideration of complaint No. 189/2001, submitted to
the Committee against Torture by Mr. Bouabdallah Ltaief under article 22 of
the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment,
Having taken into account all information made available to it by the
complainant, his counsel and the State party,
Adopts the following:
Decision Under Article 22, Paragraph 7, of the Convention
1. The complainant is Mr. Bouabdallah Ltaief, a Tunisian citizen, born on 2
June 1967 in Gabès, Tunisia, and resident in Switzerland since 18 March
1999, where he has refugee status. He claims to have been the victim of
violations by Tunisia of the provisions of article 1, article 2, paragraph
1, article 4, article 5, article 11, article 12, article 13, article 14,
article 15 and article 16 of the Convention. He is represented by the
non-governmental organization Vérité-Action.
1.2 Tunisia ratified the Convention against Torture and Other Cruel Inhuman
or Degrading Treatment or Punishment and made the declaration under article
22 of the Convention on 23 September 1988.
Facts as Submitted by the Complainant
2.1 The complainant states that he was an active member of the Islamist
organization ENNAHDA (formerly MTI). In July 1987, he was detained while on
a camping trip with scouts. The complainant says that he asked the police
officers if they were acting on the basis of a judicial warrant, but he was
finally forced at gunpoint to remain silent. He states that, during his
interrogation, he was deprived of food and sleep and subjected to
intimidation by being forced to witness other detainees being tortured. He
says that, despite requests to the local police, his family were unable to
ascertain where he was being held and that his father was even detained
himself for an entire day, because he had been making such representations.
2.2 While being held on Interior Ministry premises, in the cells of the
national guard in Bouchoucha and in the police headquarters of Gabès
governorate, the complainant maintains that he was subjected to eight
torture sessions and provides a detailed description of these sessions.
2.3 He describes what is customarily known as the "roast chicken" position,
in which the victim is stripped naked, his hands tied and his legs folded
between his arms, with an iron bar placed behind his knees, from which he is
then suspended between two tables and beaten, in particular on the soles of
his feet. The complainant says that his torturers blew cigarette smoke into
his face to choke him.
2.4 The complainant also claims to have been tortured in the "upside-down"
position whereby the victim is stripped, hands tied behind his back and
suspended from the ceiling by a rope tied to one or both of his feet, with
his head hanging downwards. In this position he is kicked and struck with
sticks and whips until he passes out. The complainant adds that his
torturers tied a piece of string to his penis which they then repeatedly
tugged, as if to tear his penis off.
2.5 The complainant claims to have been subjected to the "falka", in which
the victim's feet are tied to a bar which is then lifted so that his
torturers can lash the soles of his feet.
2.6 The complainant also claims to have been subjected to the "chair"
torture, in which the victim is stripped and tied to a chair, with his hands
behind his back, and beaten across the face, chest and abdomen. He says that
his torturers mopped up his blood with paper which they then stuffed into
his mouth to stifle his cries.
2.7 The complainant was also prevented from sleeping, from using the
lavatory and from washing.
2.8 According to the complainant, following this torture and ill-treatment,
he was twice admitted to the emergency service at Gabès hospital, but was
unable to receive any visitors or to contact his family or his lawyer.
2.9 The complainant states that, in these conditions, he was forced to make
confessions and that at the beginning of September 1987, he was placed in
the 9 April prison in a solitary cell and deprived of any contacts with the
outside world.
2.10 The complainant was then brought before the examining magistrate in the
presence, for the first time, of his lawyers. The examining magistrate would
not, however, allow any exchange of information to take place between the
complainant and his lawyers, refused to let the lawyers speak, dictated the
prosecution's case [FN1] against the complainant to his secretary, but was
unable to get the complainant and his counsel to sign the transcript of the
hearing.
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[FN1] The complaint does not specify the accusations brought against the
complainant.
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2.11 The complainant's case then went before the State Security Court (Cour
de Sûreté de l'Etat), where it continued for an entire month and, according
to the complainant, was unanimously regarded by the international press as a
complete travesty. The complainant says that, prior to the proceedings, the
Director of State Security, Mr. Moncef Ben Gbila, attempted unsuccessfully
to persuade him to give false testimony against other detainees, including
officials of ENNAHDA, in exchange for his release. According to the
complainant, during the proceedings, the magistrate of the State security
court, Mr. Hechmi Zemmal, forced him to keep his statements brief, thus
compromising his right to a defence. In addition, when the complainant was
brought face to face with a witness who claimed to have been the victim of
an act of violence committed by him, this witness, according to the
complainant, repeatedly stated that the complainant was not the person in
question. The defence counsel demanded that he be acquitted for lack of
evidence, but the magistrate found that the witness had been affected by the
shock of having to face his aggressor once again and, on 27 September 1987,
sentenced the complainant to 10 years' immediate imprisonment and hard
labour and 10 years' administrative supervision. [FN2]
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[FN2] The complaint does not specify the reasons given for the finding
against the complainant.
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2.12 The complainant stresses that, like other victims of torture, he was
given no opportunity in the examination proceedings and the trial to
describe his experiences of torture or to denounce those responsible.
According to the complainant, judges brusquely interrupt to prevent anyone,
even lawyers, mentioning this topic, and the fear of being subjected again
to torture, if the detainee dares raise this issue with the judge, acts as a
strong deterrent in the intimidation process.
2.13 The complainant was subsequently moved around repeatedly both within
and between the country's various penitentiary establishments. Thus, he was
held in isolation with three political prisoners, Fethi Jebrane, Mohamed
Charrada and Faouzi Sarraj, in the Borj Erroumi prison in Bizerte, from 1987
to 1992; from 1992 to 1993, he was transferred to a common criminals' cell;
from 1993 to 1994, he was held in solitary confinement in a small cell; and
from 1994 to 1996 he was held together with two ENNAHDA officials - Habib
Ellouz and Ajmi Lourimi - and then transferred to El Kef prison and to the
central prison in Tunis, from 1996 to 1997.
2.14 The complainant says that the living standards and the treatment meted
out to prisoners by the prison authorities made his imprisonment an
intolerable ordeal. He refers to the prison crowding, the dirty conditions,
the contagious diseases and the lack of medical care. He claims that the
punishment cells in which he was held in the Borj Erroumi prison were
extremely cramped, dark, with no water or WC, and very damp; his rations
were limited to one piece of bread a day and he was forced to wear dirty,
flea-infested clothes. He maintains that the political prisoners were
subjected to discriminatory treatment, as part of a general policy of
physical and mental aggression. In support of this claim he explains that he
was repeatedly barred from having contact with others and from engaging in
joint prayers. He adds that he was deprived of medical care, despite
repeated requests, threats to go on hunger strike and his refusal to take
exercise in the prison yard. According to the complainant, his family visits
were restricted to 10 minutes and the women visitors were forced to remove
their veils. The complainant adds that, in punishment cell No. 2 at Borj
Erroumi prison, he was stripped naked and tied hand-and-foot to a cot for
three days on end. He says that he was then subjected to this punishment
again for a period of six days, after requesting medical care for kidney
pains. In addition, the warders punched, slapped and kicked him. According
to the complainant, in February 1994, the prison director beat him viciously
while he was on hunger strike and had been placed in shackles and, in the
process, broke his right arm. When the complainant returned from hospital,
the prison director ordered him to be returned to the punishment cells,
where he was left shackled for eight days, naked and without blankets,
thereby aggravating his kidney pains. In El Kef prison, where he spent 10
days in the punishment cells, he had a blanket only from 10 p.m. to 6 a.m.,
despite the cold temperatures in the town, with the result that for the last
three days he was unable to walk. Finally, a few days before his release, he
was placed together with 24 other prisoners in Tunis central prison in a
cell measuring only 3.5 metres by 2 metres. According to the complainant,
with only one very small window high up on the cell wall, it was difficult
to breathe, and the overcrowding was so bad that the detainees were unable
even to sit.
2.15 The complainant explains that, in a bid to lessen the torture against
him, including solitary confinement for periods of between 3 days and one
and a half months, he was forced on at least 15 occasions to mount hunger
strikes, lasting for periods of between 5 and 28 days.
2.16 On the day of his release, 24 July 1997, the complainant was escorted
to the Bouchoucha detention centre, where he was questioned about his plans
for the future as a militant and about his fellow detainees. According to
the complainant, this questioning was followed by a session of mental
harassment and threats. He says that he was released at 4 p.m. with
instructions to report to the local police the moment he arrived in his home
region of Gabès. There he was subjected to further questioning for a period
of four hours. He was ordered to report twice a week to the regional police
headquarters and daily at the local police station. According to the
complainant, this administrative supervision was accompanied by police
checks, including at night, of him and his family, the denial of his right
to work and to study, refusal to issue a passport to his father and the
confiscation of his brother's passport. He was also required to obtain
permission from the local police for any movement away from his place of
residence, a requirement which was accompanied by further questioning about
his relatives and people with whom he had contacts. The complainant adds
that he was detained for 48 hours in November 1998, during President Ben
Ali's visit to Gabès governorate. He maintains that, whenever he had any
contact with others living in the neighbourhood, both he and the people he
met would be taken in for questioning.
2.17 Given this situation, the complainant explains that he then fled
Tunisia for Switzerland, where he obtained refugee status. [FN3]
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[FN3] He entered Swiss territory on 18 March 1999. There is no indication of
the date when he obtained refugee status.
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2.18 The complainant provides a list of people who subjected him to torture
and ill-treatment. [FN4 ]
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[FN4] Available for information in the file.
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2.19 The complainant describes the consequences of the torture and
ill-treatment that was inflicted on him, namely, an operation in 1988 to
remove a fatty growth at the back of his head caused by violent blows
administered under torture; scars of cigarette burns on his feet; kidney
pains resulting from the detention conditions; and mental problems: he
submits a medical certificate attesting to a neuropsychiatric disorder and
showing that he has received medical treatment and psychotherapy at a Swiss
psychiatric centre.
2.20 As to whether all domestic remedies have been exhausted, the
complainant argues that, while such remedies might be provided for in
Tunisian law, they are impossible in practice because of the bias of judges
and the impunity granted to those responsible for violations. He adds that
the regulations governing the activities of bodies which play a role in
upholding human rights, such as the Higher Committee for Human Rights and
Fundamental Freedoms and the Constitutional Council, prevent them from
supporting complaints of torture. To back up his argument, he cites the
reports of such non-governmental organizations as Amnesty International, the
International Federation for Human Rights and Human Rights Watch.
Substance of the Complaint
3.1 The complainant maintains that the Tunisian Government has breached the
following articles of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment:
Article 1. The practices described above, such as "falka", the "roast
chicken" position, the "upside-down" position, the "chair", etc., to which
the complainant was subjected, constitute acts of torture.
Article 2, paragraph 1. It is alleged that the State party not only failed
to take effective measures to prevent torture, but even mobilized its
administrative machinery and, in particular, its police force as an
instrument of torture against the complainant.
Article 4. It is alleged that the State party has not ensured that all the
acts of torture to which the complainant has been subjected are offences
under its criminal law.
Article 5. It is alleged that the State party has instituted no legal
proceedings against those responsible for torturing the complainant.
Article 11. It is alleged that the authorities have not used their
supervisory powers to prevent torture; instead, specific instructions have
been given that torture is to be applied.
Article 12. It is alleged that the State party has not carried out an
investigation of the acts of torture committed against the complainant.
Article 13. It is alleged that the State party has not effectively upheld
the complainant's right to lodge a complaint with the competent authorities.
Article 14. It is alleged that the State party has ignored the complainant's
right to make a complaint and has thereby deprived him of his right to
redress and rehabilitation.
Article 15. It is alleged that on 27 September 1987 the complainant was
sentenced to a prison term on the basis of a confession obtained as a result
of torture.
Article 16. The repressive measures and practices described above, such as
solitary confinement, violation of the right to medical care and the right
to send and receive mail, restriction of family visits, etc., applied by the
State party against the complainant constitute cruel, inhuman and degrading
treatment or punishment.
3.2 The complainant also claims that his freedom of movement and his right
to work were infringed by the administrative supervision measures applied
against him, as was his right to pursue his studies.
State Party's Observations on Admissibility
4.1 On 4 December 2001, the State party challenged the admissibility of the
complaint on the grounds that the complainant has neither employed nor
exhausted available domestic remedies.
4.2 The State party points out that the complainant is a well-known activist
of the illegal extremist movement ENNAHDA, which foments religious and
racial hatred and practises violence. The State party explains that the
complainant was sentenced on 27 September 1987 by the State Security Court
to 10 years' immediate imprisonment and hard labour for having carried out a
terrorist attack against Ali Bouhlila, by throwing sulphuric acid over his
face and abdomen on 21 March 1987. According to the State party, the
complainant was also found guilty, at the same trial, of aiding and abetting
other terrorist acts.
4.3 The State party maintains that the complainant may still have recourse
to the available domestic remedies, since, under Tunisian law, the
limitation period for acts alleged to be, and characterized as, serious
offences is 10 years.
4.4 The State party explains that, under the criminal justice system, the
complainant may submit a complaint, from within Tunisia or abroad, to a
representative of the Public Prosecutor's Office with jurisdiction in the
area in question. He may also authorize a Tunisian lawyer of his own choice
to submit such a complaint or request a foreign lawyer to do so with the
assistance of a Tunisian colleague.
4.5 Under the same rules of criminal procedure, the Public Prosecutor will
receive the complaint and institute a judicial inquiry. In accordance with
article 53 of the Code of Criminal Procedure, the examining magistrate to
whom the case is referred will hear the author of the complaint. In the
light of this hearing, he may decide to hear witnesses, question suspects,
undertake on-site investigations and seize physical evidence. He may also
order expert studies and carry out any actions which he deems necessary for
the uncovering of evidence, both in favour of and against the complainant,
with a view to discovering the truth and verifying facts on which the trial
court will be able to base its decision.
4.6 The State party explains that the complainant may, in addition, lodge
with the examining magistrate during the pre-trial proceedings an
application for criminal indemnification for any harm suffered, over and
above the criminal charges brought against those responsible for the
offences against him.
4.7 If the examining magistrate deems that the public right of action is not
exercisable, that the acts do not constitute a violation or that there is no
prima facie case against the accused, he shall rule that there are no
grounds for prosecution. If, on the other hand, the magistrate deems that
the acts constitute an offence punishable by imprisonment, he shall send the
accused before a competent court - which in the present instance, where a
serious offence has been committed, would be the indictment chamber. All
rulings by the examining magistrate are immediately communicated to all the
parties to the proceedings, including the complainant who brought the
criminal indemnification proceedings. Having been thus notified within a
period of 48 hours, the complainant may, within four days, lodge an appeal
against any ruling prejudicial to his interests. This appeal, submitted in
writing or orally, is received by the clerk of the court. If there is prima
facie evidence of the commission of an offence, the indictment chamber sends
the accused before the competent court (criminal court or criminal division
of a court of first instance), having given rulings on all the counts
established during the proceedings. If it chooses, it may also order further
information to be provided by one of its assessors or by the examining
magistrate; it may also institute new proceedings, or conduct or order an
inquiry into matters which have not yet been the subject of an examination.
The decisions of the indictment chamber are subject to immediate
enforcement.
4.8 A complainant seeking criminal indemnification may appeal on a point of
law against a decision of the indictment chamber once it has been notified.
This remedy is admissible when the indictment chamber rules that there are
no grounds for prosecution; when it has ruled that the application for
criminal indemnification is inadmissible, or that the prosecution is
time-barred; when it has deemed the court to which the case has been
referred to lack jurisdiction; or when it has omitted to make a ruling on
one of the counts.
4.9 The State party stresses that, in conformity with article 7 of the Code
of Criminal Procedure, the complainant may bring criminal indemnification
proceedings before the court to which the case has been referred (criminal
court or criminal division of the court of first instance) and, as
appropriate, may lodge an appeal, either with the Court of Appeal if the
offence in question is an ordinary offence, or with the criminal division of
the Court of Appeal if it is a serious offence. The complainant may also
appeal to the Court of Cassation.
4.10 Second, the State party maintains that the domestic remedies are
effective.
4.11 According to the State party, the Tunisian courts have systematically
and consistently acted to remedy deficiencies in the law, and stiff
sentences have been handed down on those responsible for abuses and
violations of the law. The State party says that, between 1 January 1988 and
31 March 1995, judgements were handed down in 302 cases involving members of
the police or the national guard under a variety of counts, 227 of which
fell into the category of abuse of authority. The penalties imposed varied
from fines to terms of imprisonment of several years. [FN5]
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[FN5] The examples cited by the State party are available for information in
the file.
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4.12 The State party maintains that, given the complainant's political and
partisan motives and his offensive and defamatory remarks, his complaint may
be considered an abuse of the right to submit complaints.
4.13 The State party explains that the extremist movement of which the
complainant is an active member has perpetrated a number of terrorist acts,
including an attack in a hotel in Monastir, in August 1987, which caused a
British tourist to lose both legs. Furthermore, this "movement" is not
recognized under current Tunisian law.
4.14 The State party explains that the claims by the complainant demonstrate
his political aims and confirm the biased and partisan nature of his
allegations. Such is the case, according to the State party, when the
complainant states that, in a State where the people do not have the right
to express their views on the major issues of public life, legality is de
facto diminished by the lack of any form of democratic oversight. The State
party maintains, in addition, that the complaint contains offensive and
defamatory remarks about the institutions of the Tunisian State, such as the
complainant's statement that the entire administration is at the beck and
call of the police apparatus, which turns the State into an effective
instrument of torture.
Complainant's Comments on the State Party's Observations
5.1 On 3 June 2002, the complainant challenged the State party's argument
that he was supposedly unwilling to turn to the Tunisian justice system and
make use of domestic remedies. He enumerates, by way of introduction, the
efforts he made, to no avail, to approach the judicial and prison
authorities with his complaints of ill-treatment, which made his situation
worse, causing fear and reluctance to take action. He refers once again to
the insurmountable obstacles placed in his way by the administrative
supervision arrangements, which also embodied a definite threat of reprisals
if he made a complaint.
5.2 The complainant believes that the recourse procedures are excessively
protracted. He describes, in this context, how he drew the judge's attention
to the torture inflicted on him, so that the judge would take the necessary
steps to bring the culprits to justice - but to no avail. He adds that, over
the last 20 or 30 years, complaints about deaths resulting from torture have
been ignored, while to this day the torturers continue to enjoy the
protection of the State.
5.3 The complainant also maintains that the available remedies are not
likely to succeed. He says that he complained to the judge of ill-treatment
against him and requested a medical check, but to no avail. It therefore
seemed unlikely to him that he would obtain satisfaction from the judicial
authorities. The complainant explains that his case with the judge was not
an isolated instance and, in that context, submits an extract from a report
by the Tunisian Committee for Human Rights and Freedoms. The complainant
maintains that the judicial system is not independent and gave him no
protection during his trial and conviction. He also cites extracts from
reports by the International Federation for Human Rights and the Tunisian
Committee for Human Rights and Freedoms in support of his observation that
complaints of torture do not succeed and that the authorities exert pressure
to prevent the lodging of such complaints. He also maintains that the
administrative supervision under which he was placed, which involved
constant supervision by a number of different authorities accompanied by
acts of intimidation, was not a circumstance conducive to the lodging of
complaints.
5.4 The complainant also challenges the State party's argument that a
Tunisian lawyer can be instructed from abroad to lodge a complaint.
5.5 The complainant cites serious encroachments by the authorities on the
free and independent exercise of the legal profession. According to him,
lawyers who dare to defend complaints of torture are subject to harassment
and other abuses, including prison sentences. As an example, he cites the
cases of the lawyers Néjib Hosni, Béchir Essid and Anouar Kosri, and quotes
extracts from reports and statements by Amnesty International, the World
Organization against Torture, the International Federation for Human Rights
and the International Commission of Jurists. He adds, also on the basis of
these reports by non-governmental organizations, that none of the complaints
lodged by victims of torture over recent years, particularly following the
promulgation in 1988 of article 13 bis of the Code of Criminal Procedure,
providing for the possibility of medical visits, have been followed up. He
also explains that, in certain cases, medical checks have been allowed after
a long delay, once all traces of torture have disappeared, and that the
checks are sometimes carried out by compliant doctors who will fail to find
anything wrong with the detainees' physical condition, even if there are
traces of torture. The complainant believes that, in these circumstances, it
would not make much difference to appoint a lawyer. The complainant also
stresses that the lodging of a complaint from abroad with the Tunisian
authorities is likely to be covered by article 305, paragraph 3, of the Code
of Criminal Procedure, which provides that "any Tunisian who commits any of
the offences mentioned in article 52 bis of the Criminal Code abroad may
also be prosecuted and brought to trial, even if the aforementioned offences
are not punishable under the legislation of the State in which they were
committed". The complainant believes that a complaint submitted by him from
abroad could be construed as an insult against the regime, given that the
State party has declared him to be a terrorist. Lastly, he explains that his
situation as an asylum-seeker, then as a political refugee in Switzerland,
precludes him from successfully concluding any proceedings that he might
initiate, given the restrictions placed on contacts between refugees and the
authorities in their own countries. He explains that severance of all
relations with the country of origin is one of the conditions on which
refugee status is granted, and that it plays an important role when
consideration is being given to withdrawing asylum. According to the
complainant, such asylum would effectively end if the refugee should once
again, of his own volition, seek the protection of his country of origin,
for example by maintaining close contacts with the authorities or paying
regular visits to the country.
5.6 The complainant also challenges the affirmation by the State party of
the existence of available remedies.
5.7 He argues that the State party has confined itself to repeating the
procedure described in the Code of Criminal Procedure, which is far from
being applied in reality, particularly where political prisoners are
concerned. In support of his argument, the complainant cites reports by
Amnesty International, Human Rights Watch, the World Organization against
Torture, the National Consultative Commission on Human Rights in France and
the National Council for Fundamental Freedoms in Tunisia. The complainant
also refers to the Committee against Torture's concluding observations on
Tunisia, dated 19 November 1998. He stresses that the Committee against
Torture recommended, among other things, that the State party should, first,
ensure the right of victims of torture to lodge a complaint without the fear
of being subjected to any kind of reprisal, harassment, harsh treatment or
prosecution, even if the outcome of the investigation does not prove their
allegations, and to seek and obtain redress if those allegations are proven
correct; second, ensure that medical examinations are automatically provided
following allegations of abuse and that autopsies are performed following
any deaths in custody; and third, ensure that the findings of all
investigations concerning cases of torture are made public and that such
information includes details of any offences committed, the names of the
offenders, the dates, places and circumstances of the incidents and the
punishment received by those found guilty. The Committee also noted that
many of the regulations existing in Tunisia for the protection of arrested
persons were not adhered to in practice. It also expressed its concern over
the wide gap that existed between law and practice with regard to the
protection of human rights, and was particularly disturbed by the reported
widespread practice of torture and other cruel and degrading treatment
perpetrated by security forces and the police, which, in certain cases,
resulted in death in custody. The complainant also notes the lack of
independence of the judicial system and the bodies set up to monitor
application of the law. Lastly, he emphasizes that the State party's reply,
in the current case, shows that no domestic investigation has been held into
the rather detailed information contained in the complaint under
consideration.
5.8 The complainant challenges the State party's argument that the domestic
remedies are effective.
5.9 With regard to the 302 cases involving police or national guard officers
against whom, according to the State party, sentences have been handed down,
the complainant points out that there is no tangible proof that these cases,
which have not been published or made public in any way, actually took
place; that the 277 cases cited by the State party as examples of abuse of
authority are not relevant to the case in question; and that the State party
refers only to cases which do not tarnish the image of Tunisia and therefore
include no case of inhuman or degrading treatment. He explains that the
cases adduced by the State party took place during the period 1988-1995 and
were covered by the concluding observations of the Committee against Torture
mentioned above. Lastly, citing extracts from reports by the Tunisian
Committee for Human Rights and Freedoms and Amnesty International in
particular, he draws attention to the immunity enjoyed by officials involved
in acts of torture, some of whom have even been promoted. The complainant
adds that Tunisia has helped Tunisian officials evade arrest warrants issued
against them abroad on the basis of complaints by victims of torture
5.10 Finally, the complainant rejects the comments by the State party
characterizing his complaint as an abuse of rights. He says that, with its
references in this context to political commitment and terrorism, the State
party is demonstrating its bias and, by extension, the impossibility of
obtaining any remedy in Tunisia. The complainant also stresses that the
prohibition of torture and inhuman or degrading treatment is a provision
which admits of no exception, including for terrorists. He believes that, in
its response to this complaint, the State party is resorting to a political
manoeuvre which has no legal relevance and which constitutes an abuse of
rights.
Additional Information from the State Party on Admissibility
6.1 On 8 November 2002 the State party again challenged the admissibility of
the complaint. It maintains that the complainant's claims about recourse to
the Tunisian justice system and the use of domestic remedies are baseless
and unsupported by any evidence. It affirms that appeal procedures do not
take an unreasonable time, and that proceedings in respect of the
allegations made in the complaint are not time-barred, since the time-limit
for bringing proceedings in such cases is 10 years. Contrary to what the
complainant alleges, the State party says that he can instruct a lawyer of
his choice to lodge a complaint from abroad. It adds that the complainant's
claims that a complaint lodged from abroad with the Tunisian authorities
might be covered by article 305, paragraph 3, of the Code of Criminal
Procedure, which permits the prosecution of those guilty of terrorist acts,
are baseless. The State party maintains that domestic remedies before the
Tunisian judicial authorities are not only possible in the current case but
indeed effective, as shown by the fact that victims of violations in Tunisia
have obtained satisfaction. Fourth, the State party argues that the
complainant is abusing the right to lodge complaints by seeking to
misrepresent and distort the points made in the State party's response of 4
December 2001.
Committee's Decision on Admissibility
7.1 At its twenty-ninth session, the Committee considered the admissibility
of the complaint, and in a decision of 20 November 2002 declared it
admissible.
7.2 With regard to the issue of the exhaustion of domestic remedies, the
Committee noted that the State party challenged the admissibility of the
complaint on the grounds that the available and effective domestic remedies
had not been exhausted. In the present case, the Committee noted that the
State party had provided a detailed description both of the remedies
available, under law, to any complainant and of cases where such remedies
had been applied against those responsible for abuses and for violations of
the law. The Committee considered, nevertheless, that the State party had
not sufficiently demonstrated the relevance of its arguments to the specific
circumstances of the case of this complainant, who claims to have suffered
violations of his rights. It made clear that it did not doubt the
information provided by the State party about members of the security forces
being prosecuted and convicted for a variety of abuses. But the Committee
pointed out that it could not lose sight of the fact that the case at issue
dates from 1987 and that, given a statute of limitations of 10 years, the
question arose of whether, failing interruption or suspension of the statute
of limitations - a matter on which the State party had provided no
information - action before the Tunisian courts would be disallowed. The
Committee noted, moreover, that the complainant's allegations related to
facts that had already been reported to the authorities. The Committee
pointed out that to date it remained unaware of any investigations
voluntarily undertaken by the State party. The Committee therefore
considered it very unlikely in the present case that the complainant would
obtain satisfaction by exhausting domestic remedies, and decided to proceed
in accordance with article 22, paragraph 5 (b), of the Convention.
7.3 The Committee noted, in addition, the argument by the State party to the
effect that the complainant's claim was tantamount to abuse of the right to
lodge a complaint. The Committee considered that any report of torture was a
serious matter and that only through consideration of the merits could it be
determined whether or not the allegations were defamatory. Furthermore, the
Committee believed that the complainant's political and partisan commitment
adduced by the State party did not impede consideration of this complaint,
in accordance with the provisions of article 22, paragraph 2, of the
Convention.
7.4 Lastly, the Committee ascertained, as it is required to do under article
22, paragraph 5 (a), of the Convention, that the same matter has not been
and is not being examined under another procedure of international
investigation or settlement.
State Party's Observations on the Merits
8.1 In its observations of 3 April 2003 and 25 September 2003, the State
party challenges the complainant's allegations and reiterates its position
regarding admissibility.
8.2 In relation to the allegations concerning the State party's "complicity"
and inertia vis-à-vis "practices of torture", the State party indicates that
it has set up preventive [FN6] and dissuasive [FN7] machinery to combat
torture so as to prevent any act which might violate the dignity and
physical integrity of any individual.
---------------------------------------------------------------------------------------------------------------------
[FN6] This includes instruction in human rights values in training schools
for the security forces, the Higher Institute of the Judiciary and the
National School for training and retraining of staff and supervisors in
prisons and correctional institutions; a human-rights-related code of
conduct aimed at senior law enforcement officials; and the transfer of
responsibility for prisons and correctional institutions from the Ministry
of the Interior to the Ministry of Justice and Human Rights.
[FN7] A legislative reference system has been set up: contrary to the
complainant's allegation that the Tunisian authorities have not criminalized
acts of torture, the State party indicates that it has ratified the
Convention against Torture without reservations, and that the Convention
forms an integral part of Tunisian domestic law and may be invoked before
the courts. The provisions of criminal law relating to torture are severe
and precise (Criminal Code, art. 101 bis).
---------------------------------------------------------------------------------------------------------------------
8.3 Concerning the allegations relating to the "practice of torture" and the
"impunity of the perpetrators of torture", the State party considers that
the complainant has not presented any evidence to support his claims. It
emphasizes that, contrary to the complainant's allegations, Tunisia has
taken all necessary legal and practical steps, in judicial and
administrative bodies, to prevent the practice of torture and prosecute any
offenders, in accordance with articles 4, 5 and 13 of the Convention.
Equally, according to the State party, the complainant has offered no
grounds for his inertia and failure to act to take advantage of the
effective legal opportunities available to him to bring his case before the
judicial and administrative authorities (see paragraph 6.1). Concerning the
Committee's decision on admissibility, the State party emphasizes that the
complainant cites not only "incidents" dating back to 1987, but also
"incidents" dating from 1994, 1996 and 1997, that is, the time when the
Convention against Torture was fully incorporated into Tunisian domestic law
and when he reports "ill-treatment" that he claims to have suffered while
being held in "Borj Erroumi prison", El Kef prison and Tunis prison. Hence
the statute of limitations has not expired, and the complainant should
urgently act to interrupt the limitation period, either by contacting the
judicial authorities directly, or by performing an act which has the effect
of interrupting the limitation. The State party also mentions the scope for
the complainant to lodge an appeal for compensation for any serious injury
caused by a public official in the performance of his duties, [FN8] noting
that the limitation period stands at 15 years. FN9 The State party points
out that the Tunisian courts have always acted systematically to remedy
deficiencies in the law on acts of torture (see paragraph 4.11). According
to the State party, the complainant has merely put forward false,
contradictory, not to say defamatory remarks.
---------------------------------------------------------------------------------------------------------------------
[FN8] Under the Administrative Court Act of 1 June 1972, the State may be
held responsible even when it is performing a sovereign act if its
representatives, agents or officials have caused material or moral injury to
a third person. The injured party may demand from the State compensation for
the injury suffered, under article 84 of the Code of Obligations and
Contracts, without prejudice to the direct liability of its officials
vis-à-vis the injured parties.
FN9 Administrative Court - judgement No. 1013 of 10 May 1003 and judgement
No. 21816 of 24 January 1997.
---------------------------------------------------------------------------------------------------------------------
8.4 As for the allegations of failure to respect guarantees relating to
judicial procedure, the State party regards them as unfounded. It refers to
the complainant's inertia and failure to act. According to the State party,
the authorities did not prevent him from lodging a complaint before the
courts - on the contrary, he opted not to make use of domestic remedies. As
for the "obligation" of judges to ignore statements made as a result of
torture, the State party cites article 15 of the Convention against Torture,
and considers that it is incumbent on the accused to provide the judge with
at least basic evidence that his statement has been made in an unlawful
manner. In this way he would confirm the truth of his allegations by
presenting a medical report or a certificate proving that he had lodged a
complaint with the public prosecutor's office, or even by displaying obvious
traces of torture or ill-treatment to the court. However, the State party
points out that the complainant did not deem it necessary to lodge a
complaint either during his detention or during his trial; this formed part
of a strategy adopted by the ENNAHDA illegal extremist movement in order to
discredit Tunisian institutions by systematically alleging acts of torture
and ill-treatment but not making use of available remedies.
8.5 Concerning the allegations relating to the trial, the State party
maintains that the complainant is mistaken in claiming that he did not sign
the record of his questioning by the examining magistrate. According to the
State party, his counsel did indeed speak on the substance of the matter, at
the invitation of the examining magistrate, in accordance with the
applicable rules of criminal procedure. The State party points out that the
complainant was found guilty of throwing acid at his victim, among other
offences, and that he admitted the act before the examining magistrate and
the court, where he expressed his regret, stating that his action had given
rise to psychological problems due to a feeling of guilt and the ghastly
nature of the act. As for the complainant's statement that he had taken
steps to request a medical examination, without success, the State party
points out that an examination is not ordered in response to a mere request,
but requires the presence of indications which would justify such an
examination. Accordingly the examining magistrate had rejected the
complainant's request for a medical examination, since, according to the
State party, the complainant displayed no obvious signs of violence.
8.6 Concerning the allegations relating to his confession, the State party
considers baseless the complainant's claim that he was found guilty on the
sole basis of his confession. It points out that, under the last paragraph
of article 69 and article 152 of the Code of Criminal Procedure, a
confession on the part of the accused cannot relieve the judge of the
obligation to seek other evidence, while confessions, like all items of
evidence, are a matter for the independent appreciation of the judge. On
that basis, it is a constant of Tunisian case law that an accused cannot be
found guilty on the sole basis of a confession. [FN10] Moreover, according
to the State party, the complainant's allegation that he confessed under
torture his membership of the ENNAHDA movement is contradicted by the
certificate supplied by Mr. Ltaief to the Swiss authorities in support of
his application for political asylum, since the certificate, from the
"leader of the ENNAHDA movement", confirmed his membership of the
"movement".
---------------------------------------------------------------------------------------------------------------------
[FN10] Judgement No. 4692 of 30 July 1996, published in the Revue de
Jurisprudence et Législation (R.J.:L); judgement No. 8616 of 25 February
1974 R .J .L . 1975; and judgement No. 7943 of 3 September 1973 R.J.L 1974.
---------------------------------------------------------------------------------------------------------------------
8.7 Concerning the allegations relating to prison conditions, and in
particular the arrangements for transfers between one prison and another,
which the complainant considers an abuse, the State party points out that,
in keeping with the applicable regulations, transfers are decided upon in
the light of the different stages of the proceedings, the number of cases
and the courts which have competence for specific areas. The prisons are
grouped in three categories: for persons held awaiting trial; for persons
serving custodial sentences; and semi-open prisons for persons found guilty
of ordinary offences, which are authorized to organize agricultural labour.
According to the State party, as the complainant had changed his status from
that of remand prisoner to that of a prisoner serving a custodial sentence,
and bearing in mind the requirements as to investigations in his case or in
other similar cases, he was transferred from one prison to another, in
accordance with the applicable regulations. The conditions in which the
complainant was held, wherever he was held, were in keeping with the prison
regulations governing conditions for holding prisoners in order to ensure
prisoners' physical and moral safety. The State party points out that
prisoners' rights are scrupulously protected in Tunisia, without any
discrimination, whatever the status of the prisoner, in a context of respect
for human dignity, in accordance with international standards and Tunisian
legislation. Medical, psychological and social supervision is provided, and
family visits are allowed. The State party maintains that the conditions in
which the complainant was held were in keeping with Tunisian regulations
governing prison establishments, which conform to relevant international
standards.
8.8 Contrary to the allegations that the medical consequences suffered by
the complainant are due to torture, the State party rejects any causal link.
It notes in particular that the medical certificate recording a
neuropsychiatric disorder, which was produced by the complainant, dates from
29 July 1999, that is, some 10 years after the "incidents". The State party
also cites the psychological problems to which the complainant referred in
court (para. 8.5). In addition, according to the State party, the
complainant, contrary to his allegations, enjoyed proper medical supervision
and appropriate care during his stay at the prison of Borj Erroumi.
8.9 Concerning the allegations that he was denied visits, according to the
State party the complainant regularly received visits from his brothers, his
uncle, his father and his mother, in accordance with the prison regulations,
as demonstrated by the visitors' records in the prisons in which he was
held.
8.10 Concerning the allegations relating to article 11 of the Convention,
the State party rejects them and refers to systematic monitoring [FN11] of
compliance with rules, instructions, methods and practices of interrogation
and provisions relating to the holding [FN12] and treatment of persons who
have been arrested, detained or imprisoned. [FN13]
---------------------------------------------------------------------------------------------------------------------
[FN11] In addition to legislation, protective institutional machinery has
been set up by stages, including surprise visits to prisons by the Chairman
of the Higher Committee for Human Rights and Fundamental Freedoms, and the
creation on 31 July 2000 of a post of "judge for the enforcement of
sentences" who is responsible for closely monitoring the enforcement of
custodial sentences and conducting periodic visits to prisons.
[FN12] Act No. 99-90 of 2 August 1999 amended and supplemented a number of
provisions of the Code of Criminal Procedure, and in particular reduced the
length of police custody to three days, renewable once only for a further
three days. Under the Act, criminal investigation officers may not hold a
suspect for more than three days; they must notify the public prosecutor,
who may, by written decision, extend the length of police custody once only
for a further three days. The criminal investigation officer must inform the
suspect of the measure being taken against him and its duration, and his
rights under the law, notably the possibility of undergoing a medical
examination during his period in custody. The officer must also inform one
of the suspect's parents or children, brothers or sisters or spouse, as
selected by him, of the measure being taken against him. These safeguards
were further strengthened under the constitutional reform of 26 May 2002,
which granted constitutional status to supervision of police custody by the
judiciary, stipulating that this custodial measure could be imposed only by
order of a court.
[FN13] The Act of 24 April 2001 on conditions for the imprisonment and
treatment of detainees strengthened safeguards for the protection of
prisoners and provided for prisoners to be prepared for a working life by
offering them opportunities for paid employment.
---------------------------------------------------------------------------------------------------------------------
8.11 Concerning the allegations relating to the social position of Mr.
Ltaief's family, the State party maintains that his family is not suffering
any form of harassment or restrictions, that the family is living in decent
circumstances, and that the complainant's father is receiving a pension.
Observations by the Complainant :
9.1 In his observations dated 20 May 2003, the complainant sought to respond
to each of the points contained in the above observations by the State
party.
9.2 Concerning the preventive arrangements for combating torture, the
complainant considers that the State party has confined itself to listing an
arsenal of laws and measures of an administrative and political nature
which, he says, are not put into effect in any way. To support this
assertion he cites a report prepared by the non-governmental organization
"National Council for Fundamental Freedoms in Tunisia" (CNLT). [FN14]
---------------------------------------------------------------------------------------------------------------------
[FN14] "Pour la réhabilitation de l'indépendance de la justice», April 2000-
December 2001.
---------------------------------------------------------------------------------------------------------------------
9.3 In relation to the establishment of a legislative reference system to
combat torture, the complainant considers that article 101 bis of the Code
of Criminal Procedure was adopted belatedly in 1999, in particular in
response to the concern expressed by the Committee against Torture at the
fact that the wording of article 101 of the Criminal Code could be used to
justify serious abuses involving violence during questioning. He also claims
that this new article is not applied, and attaches a list of the victims of
repression in Tunisia between 1991 and 1998 prepared by the non-governmental
organization "Vérité-Action". He also points out that the cases cited by the
State party to demonstrate its willingness to act to combat torture relate
only to accusations of abuse of authority and violence and assault, as well
as offences under the ordinary law, and not to cases of torture leading to
death or cases involving physical and moral harm inflicted on the victims of
torture.
9.4 Concerning the practice of torture and impunity, the complainant
maintains that torturers do enjoy impunity, and that in particular no
serious investigation has been carried out into those suspected of
committing crimes of torture. He considers that, in his own case, the State
party's observations display a selective approach to the facts, by
concluding that the allegations of ill-treatment date back to 1987, whereas
the complainant recounts his "martyrdom" in prison from 1987 to 1997. The
complainant also points out that, whereas a State governed by the rule of
law should automatically follow up any report of a criminal act which may be
regarded as a serious offence, the Tunisian authorities are content to
accuse the alleged victims of terrorism and manipulation. The complainant
also produces a list of complaints by Tunisian public figures which were
recently reported and ignored by the authorities. He considers that he has
drawn up a detailed account of his individual case, giving names, places,
dates and treatment inflicted, but the State party contents itself with a
blanket denial of such treatment. The complainant did not mention torturers
because of their membership of the security forces, but because of specific
and repeated attacks on his physical and moral integrity and his private and
family life. The initiation of an investigation designed to check whether a
person belonging to the security forces has committed acts of torture or
other acts does not constitute a violation of the presumption of innocence
but a legal step which is vital in order to investigate a case and, if
appropriate, place it before the judicial authorities for decision. In
relation to appeals before the courts, the complainant considers that the
State party has confined itself to repeating the description of legal
options open to victims set out in its previous submissions without
responding to the last two sentences of paragraph 7.2 of the decision on
admissibility. He reiterates that the theoretical legal options described by
the State party are inoperative.
9.5 Concerning the claim of inertia and lack of action, the complainant
considers that the State party is inconsistent in holding that acts of
torture are regarded as serious offences in Tunisian law and accordingly
prosecuted automatically, while awaiting a complaint by the victim before
taking action. He also re-emphasizes his serious efforts to demand a medical
examination and an investigation into the torture he had suffered, referring
to the examining magistrate's refusal of his request for a medical
examination, and the medical certificate indicating a neuropsychiatric
disorder.
9.6 The complainant maintains that his counsel refused to sign the
transcript of the questioning before the examining magistrate, thereby
proving the abnormal conditions in which the proceedings took place. He also
notes that by its own admission, but by means of legal reasoning which he
finds strange, the State party acknowledges that the examining magistrate
refused his request for a medical examination because of the absence of any
obvious traces of violence. The complainant explains that holding an
individual in pre-trial detention beyond the time limits laid down by law
for the purposes of concealing the traces of torture, and then denying him
the right to a medical examination on the grounds that there were no obvious
traces of torture, falls within a pattern of institutionalization of
torture. Lastly, according to the complainant, the State party thereby
acknowledges that it prevented him from initiating an elementary and obvious
procedure which would provide him with the initial evidence he requires. He
adds that in his extremely serious case, in which he was brought before a
court of special jurisdiction (the State Security Court), this refusal
deprived him of the last resort which would have enabled him to defend his
interests. According to the complainant, given the serious charges made
against him, the slightest doubt and the slightest allegation of
ill-treatment should have triggered a process of checking. Furthermore, the
examining magistrate's refusal to authorize a medical examination lessened
the complainant's chances of resubmitting the request to the court (even
though the request was indeed resubmitted).
9.7 Concerning the allegations relating to his confession, the complainant
maintains that his confession was extracted under torture, and, citing the
reports of CNLT, states that such methods are used in political trials and
sometimes in trials involving offences under ordinary law. As for the State
party's endeavours to detect signs of contradiction in his acknowledgement
of membership of the ENNAHDA movement (para. 8.6), the complainant is
surprised at this strange reasoning, and explains that his conviction
related to an alleged attack using acid, and not membership of the ENNAHDA
movement.
9.8 Concerning the conditions in which he was held, the complainant
considers that the State party is taking refuge behind legal texts in order
to dismiss his plentiful, specific and substantiated evidence. He explains
that he was transferred for purposes of punishment, and not for any matter
related to cases pending before the courts. He points out that the question
of transferring him for the purposes of the investigation never arose, and
calls on the State party to prove the contrary.
9.9 In relation to visits, the complainant considers that denial of visits
constituted a form of revenge against him each time he sought to exercise a
right and took action to that end, for example in the form of a hunger
strike. He explains that the actual conditions in which the visits took
place - the ill-treatment inflicted on the members of his family at the
place of the visit and by the local police on their return home -
constituted breaches of national and international standards.
9.10 Concerning the allegations relating to the provision of care, the
complainant draws the Committee's attention to the medical certificate
contained in his file, pointing out that it was supplied only 10 years after
the incidents as that was the first available opportunity. He also notes
that the State party, while it accepts the existence of psychological
problems, but only on the grounds of an alleged feeling of guilt and not
because of the torture he suffered, refuses to produce the file which would
confirm the extent of the regrets of which the court was informed.
Concerning the treatment cited by the State party, the complainant demands
the production of his medical file by the State party.
9.11 In relation to administrative supervision, the complainant considers
that any punishment, including those provided for in the Tunisian Criminal
Code, may be characterized as inhuman and degrading if the goal pursued does
not include the reconciliation of the offender with his social environment.
He notes in particular that he was arbitrarily prevented from continuing his
studies, during his 10 years in prison but above all afterwards. He deplores
the fact that aside from a remark on the resumption of studies, the State
party contented itself with a blanket denial of his assertions, without any
supporting investigation or evidence. According to the complainant,
administrative supervision serves only to bolster the police's stranglehold
over the freedom of movement of former prisoners.
9.12 Concerning the situation of his family, the complainant records the
suffering caused by the police surveillance and various forms of
intimidation, ill-treatment during visits and the denial of passports for a
period of years, continuing up to the present.
9.13 Concerning the application of article 11 of the Convention, the
complainant considers that the State party once again contents itself with a
theoretical description of its legal arsenal and a reference to the
activities of the Higher Committee on Human Rights and Fundamental Freedoms,
a non-independent institution. Citing documents issued by non-governmental
organizations, [FN15] the complainant notes violations relating to the
supervision of detention and police custody, such as manipulation of the
dates when arrests were recorded, and incommunicado detention. He notes that
the State party has not responded to his precise allegations relating to his
detention for over two months.
---------------------------------------------------------------------------------------------------------------------
[FN15] Alternative report by FIDH to Tunisia's second periodic report to the
Committee against Torture; communiqué issued on 20 February 2003 by the
International Association for Support for Political Prisoners in Tunisia.
---------------------------------------------------------------------------------------------------------------------
9.14 In relation to the ENNAHDA movement, the complainant maintains that the
organization is well known for its democratic ideals and its opposition to
dictatorship and impunity, contrary to the State party's explanations. In
addition, he challenges the accusations of terrorism levelled by the State
party, which in fact form part of a complete fabrication.
9.15 Lastly, according to the complainant, the State party is endeavouring
to place the burden of proof on the victim, accusing him of inertia and
failure to act, seeking protection behind a panoply of legal measures which
theoretically enable victims to lodge complaints and evading its duty to
ensure that those responsible for crimes, including that of torture, are
automatically prosecuted. According to the complainant, the State party is
thus knowingly ignoring the fact that international law and practice in
relation to torture place greater emphasis on the role of States and their
duties in order to enable proceedings to be completed. The complainant notes
that the State party places the burden of proof on the victim alone, even
though the supporting evidence, such as legal files, registers of police
custody and visits, and so on, is in the sole hands of the State party and
unavailable to the complainant. Referring to European case law, [FN16] the
complainant points out that the European Court and Commission call on States
parties, in the case of allegations of torture or ill-treatment, to conduct
an effective investigation into the allegations of ill-treatment and not to
content themselves with citing the theoretical arsenal of options available
to the victim to lodge a complaint.
---------------------------------------------------------------------------------------------------------------------
[FN16] Guide to Jurisprudence on Torture and Ill-Treatment - Article 3 of
the European Convention for the Protection of Human Rights, Debra Long
(APT); Ribitsch v. Austria; Assenov v. Bulgaria.
---------------------------------------------------------------------------------------------------------------------
Consideration of the Merits
10.1 The Committee examined the complaint, taking due account of all the
information provided to it by the parties, in accordance with article 22,
paragraph 4, of the Convention.
10.2 The Committee took note of the State party's observations of 3 April
2003 challenging the admissibility of the complaint. It notes that the
points raised by the State party are not such as to prompt reconsideration
of the Committee's decision on admissibility, notably owing to the lack of
new or additional information from the State party on the matter of
investigations voluntarily carried out by the State party (see paragraph
7.2). The Committee therefore does not consider that it should review its
decision on admissibility.
10.3 The Committee therefore proceeds to examine the merits of the
complaint, and notes that the complainant alleges violations by the State
party of article 1, article 2, paragraph 1, article 4, article 5, article
11, article 12, article 13, article 14, article 15 and article 16 of the
Convention.
10.4 Article 12 of the Convention, the Committee notes that article 12 of
the Convention places an obligation on the authorities to proceed
automatically to a prompt and impartial investigation whenever there is
reasonable ground to believe that an act of torture or ill-treatment has
been committed, no special importance being attached to the grounds for the
suspicion. [FN17]
---------------------------------------------------------------------------------------------------------------------
[FN17] Communication No. 59/1996 (Encarnación Blanco Abad v. Spain).
---------------------------------------------------------------------------------------------------------------------
10.5 The Committee notes that the complainant maintains that in 1987 he
complained to the examining magistrate of acts of torture inflicted on him
and requested a medical examination in that regard, to no avail. The
Committee also notes that the State party acknowledges that the examining
magistrate rejected the complainant's request for a medical examination on
the grounds that he displayed no obvious traces of violence. The Committee
considers that the State party's reply referring to the lack of obvious
traces of violence does not necessarily constitute a response to the
complainant's complaint of acts of torture, which under the definition of
torture set out in article 1 of the Convention give rise to "severe pain or
suffering, whether physical or mental" and may leave non-obvious but real
traces of violence. In that regard, the Committee notes the certificate
produced by the complainant reporting a neuropsychiatric disorder. Lastly,
the Committee takes note of the detailed and substantiated information
provided by the complainant regarding the hunger strikes he carried out
while in prison from 1987 to 1997, on at least 15 occasions, for periods of
between 5 and 28 days, in protest at the treatment he had suffered. The
Committee notes that the State party did not comment on this information.
The Committee considers that these elements, taken together, should have
been enough to trigger an investigation, which was not held, in breach of
the obligation to proceed to a prompt and impartial investigation under
article 12 of the Convention.
10.6 The Committee also observes that article 13 of the Convention does not
require either the formal lodging of a complaint of torture under the
procedure laid down in national law or an express statement of intent to
institute and sustain a criminal action arising from he offence, and that it
is enough for the victim simply to bring the facts to the attention of an
authority of the State for the latter to be obliged to consider it a tacit
but unequivocal expression of the victim's wish that the facts should be
promptly and impartially investigated, as prescribed by this article of the
Convention. [FN18]
---------------------------------------------------------------------------------------------------------------------
[FN18] Communications No. 6/1990 (Henri Unai Parot v. Spain) and No. 59/1996
(Encarnación Blanco Abad v. Spain).
---------------------------------------------------------------------------------------------------------------------
10.7 The Committee notes, as already indicated, that the complainant
explains that he did complain to the examining magistrate of the treatment
inflicted on him, and resorted to hunger strikes in protest at the
conditions imposed on him. Yet notwithstanding the jurisprudence under
article 13 of the Convention, the Committee notes the State party's position
maintaining that the complainant should have made formal use of domestic
remedies in order to lodge his complaint, for example by presenting to the
court a certificate proving that a complaint had been lodged with the office
of the public prosecutor, or displaying obvious traces of torture or
ill-treatment, or submitting a medical report. On this latter point, to
which the Committee wishes to draw its attention, it is clear that the
complainant maintains that his request for a medical check was denied, and
that the State party justifies this decision by citing the lack of obvious
traces of violence. The Committee points out that this reply on the part of
the State party does not necessarily answer the complainant's precise
allegation of acts of torture which left actual traces, particularly of a
neuropsychiatric nature. Finally, the Committee refers to its consideration
of the report submitted by Tunisia in 1997, at which time it recommended
that the State party should arrange for medical examinations to be organized
systematically when allegations of abuse were made.
10.8 In the light of its practice relating to article 13 and the
observations set out above, the Committee considers that the breaches
enumerated are incompatible with the obligation stipulated in article 13 to
proceed to a prompt investigation.
10.9 Finally, the Committee considers that there are insufficient elements
to make a finding on the alleged violation of other provisions of the
Convention raised by the complainant at the time of adoption of this
decision.
11. The Committee against Torture, acting under article 22, paragraph 7, of
the Convention, is of the view that the facts before it disclose a violation
of articles 12 and 13 of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment.
12. Pursuant to rule 112, paragraph 5 of its rules of procedure, the
Committee urges the State party to conduct an investigation into the
complainant's allegations of torture and ill-treatment, and to inform it,
within 90 days from the date of the transmittal of this decision, of the
steps it has taken in response to the views expressed above.
[Adopted in English, French, Russian and Spanish, the French text being the
original version. Subsequently to be issued also in Arabic and Chinese as
part of the Committee's annual report to the General Assembly.]
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