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Obligation to Investigate and Bring Justice

The prohibition of torture is not limited to a negative obligation to refrain from causing suffering, but also contains wider obligations including the obligation to investigate allegations and bring the perpetrators to justice. The UN Convention Against Torture (UNCAT) states clearly in article 12: “Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.” The next article adds an obligation to ensure that individuals have the possibility to lodge a complaint, and that this complaint be investigated.

The European Court of Human Rights (ECtHR) has noted that without such a duty to investigate, “the general legal prohibition of torture and inhumanand degrading treatment and punishment, despite its fundamental importance, would be ineffective in practice and it would be possiblein some cases for agents of the state to abuse the rights of those within their control with virtual impunity.” The Inter-American Court of Human Rights has similarly found the failure to mount an effective investigation to be a violation of the right to be protected against torture and inhuman treatment.

Investigations should not be dependent on the lodging of a complaint. States must launch an investigation whenever there is reasonable suspicion that torture has taken place. The ECtHR has stated in this regard that where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the state to provide a plausible explanation as to the cuase of the injury. Since it is likely that health professionals would be amongst the first to discover any signs of abuse, the initiation of an investigation relies heavily on their awareness, assessment and subsequent action.