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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. 187/2001, submitted to
the Committee against Torture by Mr. Dhaou Belgacem Thabti 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. Dhaou Belgacem Thabti, a Tunisian citizen, born on
4 July 1955 in Tataouine, Tunisia, and resident in Switzerland since 25 May
1998, 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 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). Following a wave of arrests in Tunisia,
which commenced in 1990 and was targeted in particular against members of
this organization, he went into hiding from 27 February 1991. On 6 April
1991, at 1 a.m., he was arrested and severely beaten by the police, who
kicked, slapped and punched him and struck him with truncheons.
2.2 Incarcerated in the basement cells in the Interior Ministry (DST)
building in Tunis and deprived of sleep, the complainant was taken, the
following morning, to the office of the Director of State Security, Ezzedine
Jneyeh. According to the complainant, this official personally ordered his
interrogation under torture.
2.3 The complainant provides a detailed description, accompanied by
sketches, of the different types of torture to which he was subjected until
4 June 1991 in the premises of the Interior Ministry (DST).
2.4 The complainant 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. In this position he was
subjected to beatings, in particular on the soles of his feet, until he
passed out. The complainant adds that the policemen inflicting this torture
would then bring him round by throwing cold water over his body and by
applying ether to sensitive areas, such as his buttocks and testicles.
2.5 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 was kicked and struck with
sticks and whips until he passed out. He adds that his torturers tied a
piece of string to his penis which they then repeatedly tugged, as if to
tear his penis off.
2.6 The complainant claims to have been subjected to immersion torture, in
which the victim is suspended upside-down from a hoist and immersed in a
tank of water mixed with soap powder, bleach and sometimes even urine and
salt; the victim is unable to breathe and is therefore forced to keep
swallowing this mixture until his stomach is full. He states that he was
then kicked in the stomach until he vomited.
2.7 The complainant also maintains that he was tortured in the "scorpion"
position, in which the victim is stripped, his hands and feet tied behind
his back, and then lifted by his torturers, face downwards, with a chain
hoist, while pressure is applied to his spine. He states that, in this
position, he was beaten and whipped on his legs, arms, stomach and genitals.
2.8 The complainant also claims to have been subjected to "table torture",
in which he was stripped, made to lie flat on his back or stomach on a long
table, with his arms and legs tied down, and was then beaten.
2.9 In support of his claims of torture and the effects of torture, the
complainant submits a certificate from a Swiss physiotherapist, a report by
a neurological specialist in Fribourg and a certificate of psychiatric
treatment from the medical service of a Swiss insurance company. He also
cites an observation mission report by the International Federation for
Human Rights, stating that, during proceedings initiated on 9 July 1992
against Islamist militants, including the complainant, all the defendants
that were interviewed complained that they had been subjected to serious
physical abuse whilst in police custody.
2.10 The complainant provides a list of persons who subjected him to torture
during this period, namely, Ezzedine Jneieh, Director of DST; Abderrahmen El
Guesmi; El Hamrouni; Ben Amor, Inspector of Police; and Mahmoud El Jaouadi,
Slah Eddine Tarzi and Mohamed Ennacer-Hleiss, all of Bouchoucha Intelligence
Service. He adds that his torturers were assisted by two doctors and that he
witnessed torture being inflicted on his fellow detainees.
2.11 On 4 June 1991, the complainant appeared before the military examining
magistrate, Major Ayed Ben Kayed. The complainant states that, during the
hearing, he denied the charges against him of having attempted a coup
d'état, and that he was refused the assistance of counsel.
2.12 The complainant claims that he was then placed in solitary confinement
in the premises of the Ministry of the Interior (DST), from 4 June to 28
July 1991, and refused all visits, mail, medicine and necessary medical
attention, except for one visit, on 18 July 1991, by Dr. Moncef Marzouki,
President of the Tunisian Human Rights League. The complainant adds that he
was not fed properly, that he was denied the right to practise his religion
and that he was once again subjected to torture.
2.13 From 28 July 1991, when his period of police custody ended, the
complainant was repeatedly transferred between different prison
establishments in the country - in Tunis, Borj Erroumi (Bizerte), Mahdia,
Sousse, Elhaoireb and Rejim Maatoug - which transfers, he maintains, were
designed to prevent him having any contact with his family.
2.14 The complainant describes the bad conditions in these detention
facilities, such as overcrowding, with 60-80 persons in the small cells in
which he was held, and the poor hygiene, which caused sickness: he maintains
that, as a result, he developed asthma and suffered skin allergies and that
his feet are now disfigured. He states that on several occasions he was
placed in solitary confinement, partly because of the hunger strikes he
mounted in the 9 April prison in Tunis over 12 days in July 1992, and in
Mahdia over 8 days in October 1995 and 10 days in March 1996, as a protest
against the conditions in which he was being held and the ill-treatment to
which he was subjected, and partly by arbitrary decision of the prison
warders. He also stresses that he was stripped naked and beaten in public.
2.15 On 9 July 1992 the complainant's case was heard by the Bouchoucha
military court in Tunis. He maintains that he was only able to have one
meeting with his counsel, on 20 July 1992, and that it was conducted under
the surveillance of the prison warders. On 28 August 1992, he was sentenced
to a term of six years' imprisonment.
2.16 On completion of his sentence on 27 May 1997, as indicated in the
prison discharge papers he submits, the complainant was placed under
administrative supervision for a period of five years, which effectively
meant that he was placed under house arrest in Remada, 600 kilometres from
Tunis, where his wife and children were living. Four months later, on 1
October 1997, he fled Tunisia for Libya then made his way to Switzerland,
where he obtained political refugee status on 15 January 1999. In support of
his statements, the complainant submits a copy of the report issued on 10
March 1996 by the Tunisian Committee for Human Rights and Freedoms,
describing his condition after his release, and a certificate from the Swiss
Federal Office for Refugees, on the granting of his political refugee
status. The complainant adds that, after he had fled from the country, he
was sentenced in absentia to 12 years' non-suspended imprisonment.
2.17 Finally, the complainant states that members of his family, in
particular his wife and their five children, have been the victims of
harassment (night-time raids, systematic searches of their home,
intimidation, threats of rape, confiscation of property and money, detention
and interrogation, constant surveillance), and of ill-treatment (the
complainant's son Ezzedinne has been detained and severely beaten) by the
police throughout the period of his detention and after he fled the country,
continuing until 1998.
2.18 As to whether all domestic remedies have been exhausted, the
complainant states that he complained of acts of torture committed against
him to the Bouchoucha military court, in the presence of the national press
and international human rights observers. He maintains that the president of
the court tried to ignore him but, when he insisted, replied that nothing
had been established. In addition, the judge refused outright the
complainant's request for a medical check.
2.19 The complainant adds that, after the hearing and his return to prison,
he was threatened with torture if he repeated his claims of torture to the
court.
2.20 The complainant maintains in addition that, from 27 May 1997, the date
of his release, his house arrest prevented him from lodging a complaint. He
explains that the Remada police and gendarmerie took part a continuing
process of harassment and intimidation against him during the daily visits
he made for the purposes of administrative supervision. According to the
complainant, the mere fact of submitting a complaint would have caused
increased pressure to be applied against him, even to the point of his being
returned to prison. Being under house arrest, he was also unable to apply to
the authorities at his legal place of residence, in Tunis.
2.21 The complainant maintains that, while Tunisian law might make provision
for the possibility of complaints against acts of torture, in practice, any
victim submitting a complaint will become the target of intolerable police
harassment, which acts as a disincentive to the use of this remedy.
According to the complainant, any remedies are therefore ineffective and
non-existent.
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 the "roast chicken"
position, the "upside-down" position, the "scorpion" position, immersion
torture, "table torture" and solitary confinement, to which the complainant
was subjected, constitute acts of torture.
Article 2, paragraph 1. Not only has the State party failed to take
effective measures to prevent torture, it has even mobilized its
administrative machinery and, in particular, its police force as an
instrument of torture against the complainant.
Article 4. 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. The State party has instituted no legal proceedings against those
responsible for torturing the complainant.
Article 12. The State party has not carried out an investigation of the acts
of torture committed against the complainant.
Article 13. The State party has not undertaken any examination of the
allegations of torture made by the complainant at the beginning of his
trial; instead, these have been dismissed.
Article 14. 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. The complainant was sentenced on 28 August 1992 to a prison
sentence on the basis of a confession obtained as a result of torture.
Article 16. The repressive measures and practices described above, such as
violation of the right to medical care and medicine and the right to send
and receive mail, restriction of the right to property and the right to
visits by family members and lawyers, house arrest and harassment of the
family, applied by the State party against the complainant constitute cruel,
inhuman and degrading treatment or punishment.
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 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.
4.3 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 the complaint or request a foreign lawyer to do so with the
assistance of a Tunisian colleague.
4.4 Under the same rules of criminal procedure, the Public Prosecutor will
receive the complaint and institute a judicial enquiry. 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 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.
4.5 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.
4.6 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.
4.7 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.
4.8 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.
4.9 The State party maintains that the domestic remedies are effective.
4.10 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. [FN1]
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[FN1] The examples cited by the State are available for information in the
file.v
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4.11 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.
4.12 The State party explains that the ideology and the political platform
of the "movement" of which the complainant was an active member are based
exclusively on religious principles, promoting an extremist view of religion
which negates democratic rights and the rights of women. This is an illegal
"movement", fomenting religious and racial hatred and employing violence.
According to the State party, this "movement" perpetrated terrorist attacks
which caused material damage and loss of life over the period 1990-1991. For
that reason, and also because it is in breach of the Constitution and the
law on political parties, this "movement" has not been recognized by the
authorities.
4.13 The State party explains that the complainant is making serious
accusations, not genuinely substantiated by any evidence, against the
judicial authorities by claiming that judges accept confessions as evidence
and hand down judgements on the basis of such evidence.
Complainant's Comments on the State Party's Observations
5.1 In a letter dated 6 May 2002, the complainant challenges the State
party's argument that he was supposedly unwilling to turn to the Tunisian
justice system and make use of domestic remedies.
5.2 In this context, the complainant recalls his statements concerning the
torture to which he had been subjected and his request for a medical check
made to the judge of the military court, all of which were ignored and not
acted upon, and his reports of violations of articles 13 and 14 of the
Convention against Torture, as well as his contention that placing him under
administrative supervision impeded due process. According to the
complainant, the practice described above is routinely applied by judges,
particularly against political prisoners. In support of his arguments, he
cites extracts from reports by the Tunisian Committee for Human Rights and
Freedoms, the International Federation for Human Rights and the Tunisian
Human Rights League. He also refers to the annual reports of such
international organizations as Amnesty International and Human Rights Watch,
which have denounced the practices described by the complainant.
5.3 The complainant also challenges the explanations by the State party
regarding the possibility of promptly instituting legal proceedings, the
existence of an effective remedy and the possibility of bringing criminal
indemnification proceedings.
5.4 The complainant 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, he 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. He also refers to the
Committee against Torture's final observations on Tunisia, dated 19 November
1998. The complainant 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 these allegations are proven
correct; second, ensure that medical examinations are automatically provided
following allegations of abuse and an autopsy is performed following any
death in custody; and third, ensure that the findings of all investigations
concerning cases of torture are made public and that this 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 who were 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. In addition, the complainant mentions the decision by the Committee
against Torture relating to communication No. 60/1996, Faisal Baraket v.
Tunisia. The complainant believes that the State party's statement regarding
the possibility of ensuring an effective remedy constitutes political
propaganda without any legal relevance. He explains that the cases cited by
the State party (para. 4.10) relate to Tunisian citizens who were not
arrested for political reasons, whereas the authorities reserve special
treatment for cases involving political prisoners.
5.5 The complainant also challenges the State party's argument that a
Tunisian lawyer can be instructed from abroad to lodge a complaint.
5.6 The complainant maintains that this procedure is a dead letter and has
never been respected in political cases. According to him, lawyers who dare
to defend such causes are subject to harassment and other forms of serious
encroachment on the free and independent exercise of their profession,
including prison sentences.
5.7 The complainant maintains that his situation 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.
5.8 Lastly, the complainant believes that the State party's comments
regarding his membership of the ENNAHDA movement and the aspersions cast
upon it demonstrate the continued discrimination against the opposition,
which is still considered illegal. According to the complainant, with its
references in this context to terrorism, the State party is demonstrating
its bias and any further talk of ensuring effective domestic remedies is
therefore pure fiction. He also stresses that the prohibition of torture and
inhuman or degrading treatment is a provision which admits of no exception,
including for terrorists. [FN2]
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[FN2] he complainant also refers to communication No. 91/1997, A. v.
Netherlands, concerning which the Committee against Torture upheld the
complaint of a Tunisian asylum-seeker who was a member of the opposition
because of the serious risk that he would be tortured if he returned to
Tunisia.
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5.9 Finally, in the light of his previous explanations, the complainant
rejects the observation by the State party to the effect that the present
complaint constitutes an abuse of the right to submit complaints.
Additional Observations From the State Party on Admissibility
6.1 On 8 November 2002 the State party again challenged the admissibility of
the complaint. It maintains, first, 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 adds that proceedings in
relation to the allegations made in the complaint are not time-barred, since
the time-limit for bringing proceedings in such cases is 10 years. It argues
that the complainant offers no evidence in support of his claims that the
Tunisian authorities' customary practice makes it difficult to initiate
prompt legal action or apply for criminal indemnification. It adds that the
complainant's refugee status does not deprive him of his right to lay
complaints before the Tunisian courts. Third, it maintains that, contrary to
the complainant's allegations, it is open to him to instruct a lawyer of his
choice to lodge a complaint from abroad. Lastly, the State party reaffirms
that the complaint is not based on any specific incident and cites no
evidence, and constitutes an abuse of the right to submit complaints.
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 1991 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 publicly to the judicial authorities in
the presence of international observers. 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.
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 [FN3] and dissuasive [FN4] machinery to combat
torture so as to prevent any act which might violate the dignity and
physical integrity of any individual.
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[FN3] 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.
[FN4] 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).
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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 1991, but also
"incidents" dating from 1995 and 1996, that is, a 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 "Mahdia 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, [FN5] noting that the limitation period stands at
15 years. FN6 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 4.10).
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[FN5] 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.
[FN6] Administrative Court - judgement No. 1013 of 10 May 1003 and judgement
No. 21816 of 24 January 1997.
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8.4 As for the allegations of failure to respect guarantees relating to
judicial procedure, the State party regards them as unfounded. According to
the State party, the authorities did not prevent the complainant 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 although, in the case relating to
Mr. Thabti, the court had ordered a medical check for all the prisoners who
so wished, the complainant voluntarily opted not to make such a request,
preferring to reiterate his allegations of "ill-treatment" to the court, for
the purpose of focusing on himself the attention of the observers attending
the hearing. The complainant justifies his refusal to undergo the medical
examination ordered by the court on the grounds that the doctors would
behave in a "compliant" manner. The State party replies that the doctors are
appointed by the examining magistrate or the court from among the doctors
working in the prison administration and doctors who have no connection with
it and who enjoy a reputation and integrity above all suspicion. Lastly,
according to the State party, the complainant did not deem it necessary to
lodge a complaint either during his detention or during his trial, and his
refusal to undergo a medical examination illustrates the baselessness of his
allegations and the fact that his actions form part of a strategy adopted by
the "ENNAHDA" illegal extremist movement in order to discredit Tunisian
institutions by alleging acts of torture and ill-treatment but not making
use of available remedies.
8.5 Concerning the allegations relating to the trial, according to the State
party, although the complainant acknowledges that two previous cases against
him in 1983 and 1986 were dismissed for lack of evidence, he continues
nevertheless to accuse the legal authorities systematically of bias. In
addition, contrary to the complainant's allegations that during his trial
and during questioning the examining magistrate attached to the Tunis
military court denied him the assistance of counsel, the State party points
out that Mr. Thabti himself refused such assistance. According to the State
party, the examining magistrate, in accordance with the applicable
legislation, reminded the complainant of his right not to reply except in
the presence of his counsel, but the accused opted to do without such
assistance, while refusing to answer the examining magistrate's questions.
Given the complainant's silence, the magistrate warned him, in accordance
with article 74 of the Code of Criminal Procedure, that he would embark on
examination proceedings, and noted this warning in the record. Concerning
the complainant's claim that he was found guilty on the sole basis of his
confession, the State party 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. [FN7] In the case in question, the basis for the
court's decision, in addition to the confessions made by the complainant
throughout the judicial proceedings, was statements by witnesses, testimony
by his accomplices and items of evidence.
---------------------------------------------------------------------------------------------------------------------
[FN7] 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.
---------------------------------------------------------------------------------------------------------------------
8.6 Concerning the allegations relating to prison conditions, and in
particular the 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 status of the complainant had changed 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. Moreover, 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 also
considers baseless the complainant's allegations improperly equating the
conditions in which he was held with degrading treatment. It 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.
8.7 Contrary to the allegations that the medical consequences suffered by
the complainant are due to torture, the State party rejects any causal link.
Moreover, according to the State party, the complainant was treated for
everyday medical problems and received appropriate care. Lastly, following
an examination by the prison doctor, the complainant was taken to see an
ophthalmologist, who prescribed a pair of glasses on 21 January 1997.
8.8 Concerning the allegations that he was denied visits, according to the
State party the complainant regularly received visits from his wife Aicha
Thabti and his brother Mohamed Thabti, in accordance with the prison
regulations, as demonstrated by the visitors' records in the prisons in
which he was held.
8.9 Concerning the allegations relating to administrative supervision and
the social position of Mr. Thabti's family, according to the State party,
the administrative supervision to which the complainant was subject after
having served his prison term, and which he equates with ill-treatment, is
in fact an additional punishment for which provision is made in article 5 of
the Criminal Code. The State party therefore considers that the punishment
cannot be regarded as ill-treatment under the Convention against Torture.
Lastly, contrary to the complainant's allegations, the State party maintains
that the complainant's family is not suffering from any form of harassment
or restrictions, and that his wife and his children are in possession of
their passports.
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 reports prepared by the non-governmental organization
"National Council for Fundamental Freedoms in Tunisia" (CNLT). [FN8]
---------------------------------------------------------------------------------------------------------------------
[FN8] « Le procès-Tournant : A propos des procès militaires de Bouchoucha et
de Bab Saadoun en 1992 », October 1992 ; "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 suffered by 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. Contrary to the claims made by the State
party, he states that he endeavoured to lodge a complaint with the military
court on several occasions, but that the president of the court always
ignored his statements relating to torture on the grounds that he had no
medical report in his possession. According to the reports prepared by CNLT,
the court heard from the various accused and their counsel a long account of
the atrocities committed by the officials of the State security division.
According to the complainant, from among the total number of 170 prisoners
scheduled to be tried before the Bouchoucha military court, the prison
authorities selected only 25 to be given medical checks by military doctors.
He claims that he was not informed of this check when he was being held in
remand, but learned of it only in court. According to the complainant, the
president ignored the fact that the other accused had not had medical
checks, and it is false to claim that he himself freely opted not to demand
one. When apprised of this fact, the president simply ignored the objections
of the prisoners and their counsel, including the complainant, in flagrant
breach of the provisions of the law relating to the prisoners' right to a
medical report and their constitutional right to be heard, as the CNLT
report confirms. According to the complainant, this is proved by the State
party's acknowledgement that during the hearing he raised allegations of
ill-treatment. In addition, according to the complainant, 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 have always contented themselves with dismissing the claims as
"false, contradictory and defamatory", without taking the trouble to launch
investigations to determine the facts in accordance with the requirements of
Tunisian criminal procedure. The complainant considers that his allegations
are at the very least plausible in terms of the detail of the torture he
suffered (names, places and treatment inflicted), but the State party
contents itself with a blanket denial. 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, while listing in support of this conclusion
cases in which the rights of the victims were ignored. He points out that
the case law cited by the State party relates to cases tried under ordinary
law and not to prisoners of opinion.
9.5 Concerning the complainant's inertia and lack of action, he 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 described above to demand
a medical examination and an investigation into the torture he had suffered.
With particular reference to a report prepared by CNLT, FN9 he mentions the
circumstances surrounding the medical examinations of 25 prisoners, carried
out with the aim of giving an appearance of respect for procedural
guarantees, and the lack of integrity of the appointed doctors. FN10 He
points out that video recordings were made of the hearings in the Bouchoucha
military court, which could then be replayed to check each complainant's
statements.
---------------------------------------------------------------------------------------------------------------------
[FN9] Available for information in the file.
[FN10] "The role played by some of the doctors was no less serious, in the
sense of what they did during the torture by assisting the torturers [to
assess] the state of the victim and the degree of torture the victim could
bear […] information gathered from the torture victims or from analyses
carried out in which famous doctors knowingly concealed the truth about the
causes of the injuries suffered by the accused during episodes of physical
torture" - CNLT report, October 2002.
---------------------------------------------------------------------------------------------------------------------
9.6 Concerning the allegations relating to the trial, the complainant points
out, first, that the dismissal of proceedings against him in 1983 and 1986
took place in a political context of détente (in 1983 and 1984, the phased
release of the leaders of the Mouvement de la Tendance Islamique, which
became ENNAHDA in 1989) and the legitimization of a new regime (a
presidential amnesty was proclaimed after the 1987 coup d'état), and
illustrated the fact that the courts were dependent on the executive branch
(as shown in reports prepared by non-governmental organizations). [FN11]
Second, in relation to his refusal of the assistance of counsel, the
complainant provides the following corrections and produces a report
prepared by CNLT. [FN12] Appearing before examining magistrate Ayed Ben
Gueyid, attached to the Tunis military court, the complainant reiterated his
request to be assisted by a court-appointed lawyer or one instructed by his
family. The complainant designated Mr. Najib ben Youssef, who had been
contacted by his family. This lawyer advised him to consult Mr. Moustafa
El-Gharbi, who was able to assist the complainant only from the fourth week
of the trial onwards, and was able to pay him only one or two visits in the
9 April prison, under close surveillance by prison guards. In response to
the complainant's request for the assistance of a lawyer, the military
examining magistrate replied "No lawyer", prompting the complainant to say
"No lawyer, no statement". Following this declaration, the complainant
reports that he was violently beaten by military policemen, in a room next
to the office of the military examining magistrate, during a break which was
imposed and ordered by the magistrate. The complainant was then placed in
solitary confinement in the 9 April prison in Tunis for two months.
Following this punishment, the examining magistrate's file was missing from
the first hearing attended by the complainant, a matter which the
complainant explained to the president of the court by describing what had
happened before the military examining magistrate.
---------------------------------------------------------------------------------------------------------------------
[FN11] International Commission of Jurists, report on Tunisia, 12 March
2003.
[FN12]Available for information in the file.
---------------------------------------------------------------------------------------------------------------------
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. Concerning the
testimony of the prosecution witness Mohamed Ben Ali Ben Romdhane, his
fellow prisoner, the complainant states that he does not know this person,
and that he was not among the 297 persons who were tried in Bouchoucha
court, and calls on the State party to produce the transcript of the
testimony provided by this person, together with the court file, to make it
possible to check whether the court took its decision on the basis of a
confession obtained as a result of torture. According to the complainant,
the reference to this witness is pure invention on the part of the
torturers. Secondly, the complainant points out that, even if a prosecution
witness had appeared, the accused should have had an opportunity to
challenge his testimony or to confront him, which did not happen.
9.8 Concerning the conditions in which he was held, and concerning visits,
the complainant considers that the State party has once again confined
itself to brief and general observations in response to 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, and in that connection provides the following chronology:
6 April 1991 Arrested and held in the basement of the Interior Ministry; 13
May 1991, transferred to Mornag prison incommunicado.
4 June 1991 Handed over to the political police to sign the transcript of
the interrogation, without being informed of its content; handed over to the
military examining magistrate, then at 11 p.m. transferred to the 9 April
prison in Tunis, where he was held until the end of November 1991 (including
two months in solitary confinement).
1 December 1991 Transferred to Borj Erroumi prison in Bizerte (70 kilometres
from his family home).
4 July 1992 Transferred to the 9 April prison in Tunis, where he was held
until 15 September 1992; this period corresponded to that of the court
hearings.
28 August 1992 Sentenced to six years' non-suspended imprisonment and five
years' administrative supervision.
15 September 1992 Transferred to Borj Erroumi prison in Bizerte, where he
was held until 4 July 1993.
4 July 1993 Transferred to Mahdia prison (200 kilometres from his home),
where he was held until 19 September 1993.
19 September 1993 Transferred to Sousse prison (160 kilometres from his
home), where he was held until 4 April 1994.
4 April 1994 Transferred to Mahdia prison, where he was held until the end
of December 1994.
End of December 1994 Transferred to 9 April prison in Tunis; interrogated
and tortured at the Interior Ministry for four consecutive days.
End of December 1995 Transferred to Mahdia prison; hunger strike from the
middle to the end of February 1996 to support a demand for better prison
conditions.
End of February 1996 Transferred to El Houerib prison in Kairouan (250
kilometres from his home) following his hunger strike.
20 March 1996 Transfer to Sousse prison; three weeks' hunger strike in
January 1997 to support a demand for better prison conditions.
7 February 1997 Transferred to Rejim Maatoug prison (600 kilometres from his
home, in the middle of the desert).
27 February 1997 Transfer to Sousse prison.
27 May 1997 Released, placed under administrative supervision for five years
and house arrest at Nekrif-Remada (630 kilometres from his family home).
1 October 1997 Fled Tunisia.
9.9 The complainant explains that each time he was transferred, his family
was obliged to spend two or three months ascertaining his new place of
detention, since the prison administration provided such information only
very sparingly. According to the complainant, the purpose of these transfers
was to deprive him of the psychological and moral support of his family, and
thus to punish him. He points out that the prison entry and exit logs can
confirm his claims. He explains 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. In addition, the
complainant's family found it difficult to exercise the right to visit him
because of the many transfers, the remoteness of the places of detention and
the conditions imposed on the visitors - the complainant's wife was
ill-treated to make her remove her scarf, and guards were permanently
present between two sheets of wire mesh about one metre apart separating her
from the complainant.
9.10 Concerning the allegations relating to the provision of care, the
complainant repeats that he was denied the right to consult a doctor to
diagnose the consequences of the torture he had suffered, and draws the
Committee's attention to the medical certificate contained in his file.
Concerning the treatment cited by the State party, the complainant points
out that the medical check was carried out three weeks after his hunger
strike, that glasses were prescribed for him when he was in danger of going
blind, and that they were supplied only after a delay of about two months.
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 is
neither the "rehabilitation of the offender" nor his reconciliation with his
social environment. He explains that he was forced to undergo administrative
supervision 650 kilometres from his family home, in other words placed under
house arrest, which was not stipulated in his sentence. He adds that each
time he reported to the police station to sign the supervision log, he was
ill-treated, sometimes beaten and humiliated by the police officers.
According to the complainant, who produces a CNLT report, [FN13]
administrative supervision serves only to bolster the police's stranglehold
over the freedom of movement of former prisoners.
---------------------------------------------------------------------------------------------------------------------
[FN13] Available for information in the file.
---------------------------------------------------------------------------------------------------------------------
9.12 Concerning the situation of his family, the complainant records the
suffering caused by the police surveillance and various forms of
intimidation. He mentions that his eldest son was repeatedly slapped in
front of his brothers and mother at the door of their home when he returned
from school, and questioned at the regional police station about what his
family was living on. In addition, the members of the family received their
passports only after the complainant arrived in Switzerland on 25 May 1998
and was granted asylum. And the first members of the family received their
passports only seven months later, on 9 December 1998.
9.13 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.
9.14 Lastly, according to the complainant, the State party is endeavouring
to place the entire 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, [FN14] 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.
---------------------------------------------------------------------------------------------------------------------
[FN14] 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 the
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
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. [FN15]
---------------------------------------------------------------------------------------------------------------------
[FN15] Communication No. 59/1996 (Encarnación Blanco Abad v. Spain).
---------------------------------------------------------------------------------------------------------------------
10.5 The Committee notes that the complainant complained of acts of torture
committed against him to the Bouchoucha military court at his trial from 9
July 1992 onwards, in the presence of the national press and international
human rights observers. It also notes that the State party acknowledges that
the complainant reiterated his allegations of ill-treatment several times
before the court, in order, according to the State party, to focus the
attention of the observers attending the hearing. The Committee also takes
note of the detailed and substantiated information provided by the
complainant regarding his hunger strikes in the 9 April prison over 12 days
in July 1992 in Tunis, and in Mahdia over 8 days in October 1995 and 10 days
in March 1996, as a protest against the conditions in which he was being
held and the ill-treatment to which he was subjected. The Committee notes
that the State party did not comment on this information, and 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 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 the 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 as a
tacit but unequivocal expression of the victim's wish that the facts should
be promptly and impartially investigated, as prescribed by this provision of
the Convention. [FN16]
---------------------------------------------------------------------------------------------------------------------
[FN16] 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 did
complain of ill-treatment to the Bouchoucha military court, 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 the president
of the Bouchoucha court ignored his complaints of torture on the grounds
that he had no medical report in his possession, that the complainant was
informed only during his trial of the medical checks carried out on a
portion of the accused during remand, and that the president of the court
ignored his demands for his right to a medical report to be respected. On
the other hand, the State party maintains that the complainant voluntarily
opted not to request a medical examination although the court had ordered
such examinations for all prisoners who wished to undergo one. The Committee
refers to its consideration of the report submitted by Tunisia in 1997, at
which time it recommended that the State party should ensure that medical
examinations are provided automatically following allegations of abuse, and
thus without any need for the alleged victim to make a formal request to
that effect.
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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