REDRESS - Seeking Reparation for Torture Survivors

E/CN.4/1995/111 - 16 January 1995 Visit by the Special Rapporteur to Colombia
On impunity	82. Although impunity affects the entire judicial branch, the greatest problems occur during the investigatory phase, which is the responsibility of the Fiscalía General de la Nación. Because of the high number of crimes committed in the country, its task is particularly difficult. In many parts of the national territory, the victims themselves or witnesses prefer to remain silent for fear of reprisals or react to the violations by moving to another region, thus making the investigator's task considerably more difficult. Successive Governments should have taken decisive measures to confront this situation, instead of permitting that such a high number of crimes go unpunished year after year. 89. Another disturbing aspect of these [military criminal] courts is the fact that they are composed of officers who can also be responsible for ordering military operations in connection with which human rights violations have occurred -something that is contrary to the principle of the independence and impartiality of military judges and is a cause of impunity. 92. In connection with this problem, the Procuraduría General de la Nación states in its third report on human rights: "The military criminal courts have shown little effectiveness in trying and convicting members of the State defence and security bodies who are responsible for human rights violations. At the same time, the investigatory difficulties raised for the Procuraduría General de la Nación by proceedings in which the national police and the armed forces are involved cause excessive delays in disciplinary decisions. As noted on earlier occasions, the poorly understood concept of 'esprit de corps' leads to cover-ups, obstructs investigations, impedes the entire process and ultimately prevents justice from being done. In addition, in more than a few cases, the military criminal courts' decisions are in open contradiction with those of the Procuraduría General de la Nación, and this robs the disciplinary penalty of much of its value as a deterrent. The monitoring of the military criminal courts by the Public Ministry has not been sufficient to prevent these defects. What is needed is a thorough reorganization of the way in which the members of the armed forces are tried." The Procuraduría General de la Nación stresses that: "Concepts such as military jurisdiction, act committed while on duty and due obedience should be rethought in the light of the principles and values of the Colombian Constitution, which is based on respect for human rights. It should be made perfectly clear that these categories protect the members of the armed forces only on an exceptional basis. It is a mistake to interpret them by analogy, in such a way as to make them applicable to actions not directly connected with police or military duty." 107. Yet, the impunity enjoyed by human rights violators in Colombia is almost total. The military judiciary claims, and generally obtains, competence to deal with cases involving security forces personnel accused of human rights violations. The military justice system can be tough and effective in prosecuting and punishing disciplinary offences involving manifest disobedience of orders. But it has proved itself equally effective in guaranteeing impunity for violations of the ordinary criminal law in respect of acts (murder, torture, kidnapping) committed in the line of duty. Thus, Colombia clearly fails to fulfil its obligation under international law to carry out exhaustive and impartial investigations with a view to identifying those responsible, bringing them to justice and punishing them. [.] Although in a number of cases, administrative tribunals have granted compensation to victims or their families for damages suffered at the hands of state agents, the tribunals conducting criminal proceedings against the same agents do not find grounds for their conviction. This strongly suggests the lack of institutional willingness to hold the authors of human rights violations responsible.

Recommendations	116. The present system of military justice ensures impunity for acts such as summary execution, torture and enforced disappearance. The United Nations General Assembly, in its Declaration on the Protection of All Persons from Enforced Disappearance (resolution 47/133 of 18 December 1992), stipulated that persons alleged to have committed acts of enforced disappearance should be tried only by the competent ordinary courts, and not by any other special tribunal, in particular military courts (art. 16.2). The Special Rapporteurs are of the opinion that this should apply equally to extrajudicial, summary or arbitrary executions and torture. Therefore, the only appropriate step would be to remove such acts from the ambit of military justice. This should be clearly spelled out in the law. 117. The civilian justice system, however, is not functioning properly either. The ordinary courts prosecute to conviction in only about one tenth of all cases of murder. The Special Rapporteurs therefore call on the authorities to take the necessary steps with a view to strengthening the ordinary justice system so as to make it more efficient in all circumstances, thus making unnecessary the use of special justice systems, such as the Regional Justice System. 121. Even if such reforms are speedily implemented, the backlog of historical impunity will remain and must be addressed. The Special Rapporteurs would consider opportune the establishment of a mechanism which could contribute to providing justice for the past. Such a mechanism should be able to achieve the following goals: (a) Give a full public accounting of the scope and extent of the crimes committed in the name of the State and the political and institutional factors that contributed to the impunity of their authors; (b) Formally identify the individual responsibility for such crimes, including the direct perpetrators and those who may have given the explicit or implicit orders for their commission; (c) Instigate the corresponding criminal and disciplinary proceedings, to be carried out by the competent organs; (d) Ensure effective reparation to the victims or their dependants, including adequate compensation and measures for their rehabilitation; (e) Make recommendations that would help to prevent further violations in the future.

E/CN.4/1996/35/Add.2 - 4 January 1996 Visit by the Special Rapporteur to Chile
On immunity from prosecution	6. The persistence of the abovementioned features [continued de facto immunity from prosecution for various military and police posts] has a significant influence on the treatment of human rights questions, not only regarding violations that might occur in the present or in the future, but more particularly regarding those which occurred under the military Government. One of the most important aspects in that connection is the maintenance of the Amnesty Act of 1978, which prevents the prosecution of those responsible for violations committed between 1973 and 1978. Although there are many cases currently before the courts, also involving events subsequent to 1978, only extremely few have resulted in judgements clarifying the facts, which is tantamount to making impunity the general rule and is in sharp contrast to the seriousness of the facts described in the report of the National Commission for Truth and Reconciliation. 7. The Commission did not analyse the practice of torture per se, focusing only on executions and disappearances. However, no one is unaware that torture was practised systematically in connection with detentions for political reasons. The National Compensation and Reconciliation Agency has not looked into cases of torture during the previous period either; its work has basically consisted of helping the National Commission assess cases and provide relatives with compensation. Cases of torture not followed by death or disappearance do not give rise to compensation through this means. In such cases the only remedy available lies before an ordinary court.

Recommendations	(a) The uniformed police (Carabineros) should be brought under the authority of the Minister of the Interior, rather than the Minister of Defence. They should be subject to ordinary criminal jurisdiction only, and not to military jurisdiction. As long as the military criminal code continues to apply to them, acts of criminal human rights violations, including torture of civilians, should never be considered as an "act committed in the course of duty" (acto de servicio) and should be dealt with exclusively by the ordinary courts. . (j) Persons alleged to have committed acts of torture should be suspended from official duties during the investigation. (k) The burden of proving that a person was subjected to torture should not fall wholly on the alleged victim. The officials involved or their superiors should also be obliged to provide evidence to the contrary. (n) Close attention should be given to the recommendation of the Committee against Torture on the advisability of making special provision for the offence of torture, as described in article 1 of the Convention, and making it punishable by a penalty appropriate to its seriousness. Periods of prescription should also reflect the gravity of the crime. (p) Measures should be taken in order to ensure that victims of torture obtain adequate compensation. (q) The Programme of Compensation and Full Health Care for Victims of Human Rights Violations (PRAIS) should be reinforced so that it can assist victims of torture that occurred under either the military or the civilian Governments in all aspects of their rehabilitation, including their professional rehabilitation. (r) National non-governmental organizations also play, and have played in the past, an important role in the rehabilitation of torture victims. Whenever they require it, they should receive official support to carry out their activities in this respect. At the same time, the Government is urged to consider increasing its contribution to the United Nations Voluntary Fund for Victims of Torture which, over the years, has financed the programmes of several NGOs in Chile. (u) All allegations of torture committed since September 1973 should be the subject of a thoroughgoing public inquiry, similar to that carried out by the National Commission for Truth and Reconciliation in respect of forced disappearances and extra-legal executions. In cases where the evidence justifies it - and, given the period of time that has elapsed since the worst practices of the military government took place, this would admittedly be rare - those responsible should be brought to justice, except where proceedings are barred by the statute of limitations (prescripción).

E/CN.4/1997/7/Add.2 - 15 October 1996
Visit by the Special Rapporteur to Pakistan

On impunity

86. In Karachi, the Deputy Inspector-General of Police provided the Special Rapporteur with statistics on internal disciplinary action taken against police from January 1995 to 1 March 1996. During that period a total of 179 cases were registered against the police. In 51 cases the policemen were dismissed from the police force, 50 received "major punishments" and 40 received "minor" punishments. However, none were prosecuted for their violations. This is consistent with information the Special Rapporteur received from other sources. There appears to be a conviction on the part of police and government officials that administrative disciplinary measures such as dismissal, demotion and transfer are sufficient punishment for police and security officials who have abused their authority. Although the Government has stated its commitment to prosecute any officer found responsible for crimes such as torture, to the Special Rapporteur's knowledge none have been convicted.98. This state of affairs [the use of torture] is perpetuated by the virtual impunity from criminal sanction of the perpetrators of these grave crimes. Disciplinary punishments are not of themselves a sufficient or appropriate response.

E/CN.4/1997/7/Add.3 - 13 December 1996
Visit by the Special Rapporteur to Venezuela

Conclusions

79. The nudo hecho procedure, designed to protect public officials from false and malicious accusations of wrongdoing, was commonly and credibly perceived as being a shield to protect them from real accountability. The effectiveness of the 10-day processing rule instituted by the Attorney General (Fiscal General) had not, at the time of the mission, resulted in overcoming this problem.

80. Access to the courts for a remedy was seriously hampered by the lack of free legal advice to persons without the means to pay for legal advice.

83. [.] The Special Rapporteur is aware that there prevails a climate of general insecurity and fear of crime that has led to a pronounced lack of sympathy for those deprived of liberty and a corresponding, albeit counter-productive, demand for repression. This climate - amounting to a virtual social psychosis - is aggravated by the stringent economic pressures felt by ordinary people as a result of macroeconomic structural readjustment measures. These same measures also make it harder for the Government to divert resources from other purposes to the reform of the criminal justice system. One practical piece of evidence of the existence of some political will to avoid impunity for the most outrageous excesses is the assurances given to the Special Rapporteur that the criminal proceedings against those charged with the events in Cararabo will be pursued to their full extent. Nevertheless, this would appear to be a rare exception to the generally prevailing rule of impunity.

E/CN.4/1998/38/Add.2 - 14 January 1998 Visit by the Special Rapporteur to Mexico
Right to an effective remedy	68. The CNDH said that the legislation on compensation was highly deficient and that they were working on draft legislation for submission to the legislature that would improve the current system and establish a compensation fund for the victims of human rights violations. Members of the Human Rights Commission of the Chamber of Deputies said that legislative measures had to be introduced to establish compensation or reparation for victims and that the State should accept subsidiary liability and allocate resources for such compensation.

Recommendations	88. (j) Cases of serious crimes committed by military personnel against civilians, in particular torture and other cruel, inhuman or degrading treatment or punishment, should, regardless of whether they took place in the course of service, be subject to civilian justice; (k) The military penal code should be amended to include explicitly the crime of torture inflicted on military personnel, as is the case in the federal penal code as well as most state codes; (m) The initiative of the Comisión Nacional de Derechos Humanos (CNDH) to improve the law on compensation for victims of human rights violations should be supported; (n) In view of the poor record of the Public Prosecutor's Office in prosecuting crimes committed by public officials, consideration should be given to the possibility of establishing an independent prosecution service with responsibility for such prosecutions, perhaps appointed by and responsible to Congress; (o) Legislation should be enacted in order to make it possible for victims to challenge, before the judiciary, the failure of the Public Prosecutor's Office to initiate proceedings on human rights cases; (p) A limit should be established by law to the duration of investigations on human rights cases, including torture, carried out by the Procurator's Offices (Procuradurías), irrespective of whether such investigations are the result of recommendations made by a human rights commission. The law should also establish sanctions in cases where the limit is not respected; (r) Efforts should be pursued to increase awareness among personnel of the Procurator's Offices (Procuradurías) and the judiciary that torture should not be tolerated and that those responsible for this crime should be punished[.]

E/CN.4/1999/61/Add.1- 27 January 1999 Visit by the Special Rapporteur to Turkey
On Impunity	69. Despite the widespread reports of torture, especially in cases involving the enforcement of the Anti-Terror Law, investigation, prosecution and punishment of members of security forces are rare. Human rights organizations claim that the failure of the Turkish Government to enforce domestic and international prohibitions of torture has led to a climate of official impunity that encourages abuse of detainees during the detention period.

Recommendations	113. (k) Given the manifestly pervasive practice of torture, at least up to 1996, there should be a review by an independent body of undisputed integrity of all cases in which the primary evidence against convicted persons is a confession allegedly made under torture. All police officials, including the most senior, found to have been involved in the practice, either directly or by acquiescence, should be forthwith removed from police service and prosecuted; the same should apply to prosecutors and judges implicated in colluding in or ignoring evidence of the practice; the victims should receive substantial compensation.

E/CN.4/2000/9 /Add.1- 13 January 2000
Follow-up to the Recommendations made by the Special Rapporteur Visits to Chile, Colombia, Mexico and Venezuela

Colombia

22. In response to the Rapporteurs' recommendation that, in keeping with the obligation under international law, exhaustive, impartial investigations be conducted into all allegations of extrajudicial, summary or arbitrary executions and torture to identify, prosecute and punish those responsible, grant adequate compensation to the victims or their families and take all appropriate measures to prevent the recurrence of such acts, the Government provided the following information.

28. Act No. 288 of 1996, which the Government had already commented on in its earlier reply to the Rapporteurs after non-governmental sources had highlighted shortcomings in it, establishes methods for compensating victims of human rights violations by virtue of the provisions adopted by international bodies, more specifically the Inter-American Commission on Human Rights and the Human Rights Committee (E/CN.4/1998/38, paras. 55-59).

29. Non-governmental sources had pointed out that the Act was confined solely to financial compensation and did not envisage, for instance, social redress, the clearing of the names of the victims and fulfilment of the State's obligation to guarantee the rights to truth and justice. In so doing, the Act limited the scope of recommendations for compensation made by international bodies and excluded equally binding recommendations from other intergovernmental bodies for the protection of human rights such as the International Labour Organization and the Committee against Torture (E/CN.4/1998/38, para. 56).

30. In response, the Government explained that the fact that the Act focused on the compensation of victims did not mean that the areas mentioned in the allegations were disregarded in other norms and mechanisms. Social redress was considered by the Government case by case when the fabric of society was thought to have been affected, as, for example had happened in the cases of the violent eruptions in Trujillo, Valle, and the massacres in los Uvos and Caloto, Cauca, and the district of Villatina in Medellín.

E/CN.4/2000/9/Add.4 - 9 March 2000

Recommendations

92. (a) The Government should ensure that all allegations of torture and similar ill treatment are promptly, independently and thoroughly investigated by a body capable of prosecuting perpetrators; (b) The police, at a level at least as senior as Assistant-Commissioner, should systematically make thorough, unannounced visits to police stations to verify the legality of the detention of all persons held, as well as their treatment and conditions of detention. Disciplinary and, as appropriate, criminal charges should be preferred in respect of any abuses;

(c) A body such as the Standing Committee on Human Rights should be endowed with the authority and resources [.] to submit evidence of criminal behaviour to the relevant prosecutorial body and the administrative superiors of the public authority whose acts are in question [.];

(d) In line with guidelines 15 and 16 of the United Nations Guidelines on the Role of Prosecutors, the Attorney-General's Chambers should pay particular attention to the diligent prosecution of cases of torture and similar ill-treatment by law enforcement officials and take appropriate action when they come across information suggesting that evidence has been obtained by such methods;

(e) Where there is credible evidence that a person has been subjected to torture or similar ill-treatment, adequate compensation should be paid promptly; a system should be put in place to this end[.]

E/CN.4/2001/66/Add.1 - 14 November 2000 Visit by the Special Rapporteur to Azerbaijan
Complaints procedures :	94. NGOs indicated that victims were very often afraid of making their complaints public before their trials took place since they feared repercussions. As noted earlier, the Special Rapporteur witnessed on several occasions the reluctance or refusal of detainees to make their allegations public, even if they had already been convicted, for fear of reprisals. Many alleged victims, as well as lawyers and NGOs, also expressed their lack of confidence that those officially charged with investigating complaints would act promptly and impartially if allegations of torture were made. Furthermore, they believed that no effective sanction would be taken against those found responsible in any case. 95. With respect to complaints procedures, the Minister of Internal Affairs said that between 1997 and 1999, 361 police officers had been seriously punished for (in numerical order) ill-treatment, illegal detention, unsubstantiated opening of a criminal procedure and illegal search of premises. Most were said to have been demoted, 47 were dismissed and 31 were charged under criminal law. According to the Minister, the disciplinary measures taken by his services were considered by the alleged victims as sufficient, since he pointed out that in 1999 only 25 complaints had been forwarded by international NGOs regarding insufficient disciplinary measure. He noted that cases presented by Amnesty International had been the subject of repeated investigation and that 16 additional disciplinary measures had been imposed as a result. In 1999, 30 police officers were subjected to disciplinary measures, while 6 were dismissed and 2 were criminally prosecuted. 96. The Minister of Internal Affairs informed the Special Rapporteur that a department for internal investigation had recently been created within his Ministry. This department, which is composed of 30 officers, must immediately investigate police personnel reported by any individuals, mass media or NGOs to have infringed the rights of persons in their custody. On 4 March 2000, he had issued the "Order on Additional Measures to Ensure Legality among the Personnel" to that effect. If sufficient evidence is obtained to open a criminal case, the file must be forwarded to the prosecutor's office for consideration. Otherwise, disciplinary/administrative sanctions such as demotion and ordinary reprimands should be imposed. [.] 100. According to the Minister, serious measures had been taken against law enforcement officials found guilty of acts of torture: they had been administratively sanctioned and, in some cases, criminally prosecuted. Similarly, the General Prosecutor assured the Special Rapporteur that all cases of torture, illegal detention and denial of access to a lawyer are always investigated by his Office. A special service has been created within the General Prosecutor's Office to deal with such complaints. Furthermore, the head of the Law Enforcement Bodies Department and the Minister of Justice indicated that in the future amnesty laws will not cover cases of torture. On 10 March 2000, the special meeting of the Pardon Commission of the Office of the President is said to have discussed the recommendations of CAT and to have decided that amnesties or pardons will not apply to persons convicted of torture and inhumane treatment. It is also reported that the five amnesty acts adopted during the period 1996-1999 excluded the possibility of amnesty for persons charged with or convicted of crimes mentioned in paragraph 2 of article 168 ("actions ultra vires") of the previous Criminal Code. 103. Magistrates are also said to have been asked by the Plenary of the Supreme Court to provide by all appropriate means explanations to the persons who have suffered torture and other unlawful acts regarding their right to claim compensation for moral and physical suffering and to create the necessary conditions for them actually to benefit from this right.

Recommendations	120. (a) The Government should ensure that all allegations of torture and similar ill treatment are promptly, independently and thoroughly investigated by a body capable of prosecuting perpetrators; (b) Prosecutors should regularly carry out inspections, including unannounced visits, of all places of detention. Similarly, the Ministries of Internal Affairs and of National Security should establish effective procedures for internal monitoring of the behaviour and discipline of their agents, in particular with a view to eliminating practices of torture and ill-treatment; the activities of such procedures should not be dependent on the existence of a formal complaint. [.] (d) Where there is credible evidence that a person has been subjected to torture or similar ill-treatment, adequate compensation should be paid promptly; a system should be put in place to this end[.]

E/CN.4/2001/66/Add.2 - 30 March 2001 Visit by the Special Rapporteur to Brazil
General issues	7. The failure to investigate, prosecute and punish police officers who commit acts of torture was said to have created a climate of impunity that encouraged continued human rights violations.

Complaints procedures	145. [.T]he ouvidor [Police ombudsman's office - an oversight body to monitor police behaviour] indicated that the police in the hinterland who commit abuses benefit from almost total impunity. To remedy this situation, he had proposed the decentralization of his office activities. It is reported that two decrees have been approved to this effect but that they had not yet been published at the time of the visit of the Special Rapporteur and could therefore not be implemented. It must be noted that ouvidorias may refer a case directly to the Public Prosecutor's Office when there is sufficient evidence, even if the case has been previously filed by the police or the corregedoria. The ouvidor stressed that if public prosecutors were able to follow cases from the beginning of the inquiry instead of relying on evidence gathered by the police, this would greatly contribute to the fight against impunity. He, as well as NGOs, alleged that even though public prosecutors have the power to conduct their own investigations, they rarely exercise this power and rely mainly on police investigations, which they never question.

Recommendations	169. (a) First and foremost, the top federal and state political leaders need to declare unambiguously that they will not tolerate torture or other ill-treatment by public officials, especially military and civil police, prison personnel and personnel of juvenile institutions. They need to take vigorous measures to make such declarations credible and make clear that the culture of impunity must end. [.] (j) Complaints of ill-treatment, whether made to the police or other service itself or the internal affairs department of the service (corregedor) or its ombudsman (ouvidor) or a prosecutor, should be expeditiously and diligently investigated. In particular, the outcome should not be dependent only on proof in the individual case; patterns of abuse should be similarly investigated. Unless the allegation is manifestly ill-founded, those involved should be suspended from their duties pending the outcome of the investigation and any subsequent legal or disciplinary proceedings. Where a specific allegation or a pattern of acts of torture or similar ill-treatment is demonstrated, the personnel involved, including those in charge of the institution, should be peremptorily dismissed. This will involve radical purging of some services. A start could be made by purging known torturers from the period of the military Government; (l) Prosecutors should bring charges under the 1997 law against torture with the frequency dictated by the scope and gravity of the problem and request that judges enforce the law's provisions prohibiting bail of those charged. Attorneys-General, with the material support of gubernatorial and other relevant state authorities, should assign sufficient qualified and committed prosecutorial resources for the criminal investigation of torture and similar ill treatment and for any appellate proceedings. In principle, the prosecutors in question should not be the same as those responsible for prosecuting ordinary criminality;

E/CN.4/2003/68/Add.2- 3 February 2003 Visit by the Special Rapporteur to Uzbekistan
Prohibition of torture	8. According to the Director of the National Human Rights Centre, the question whether the actual provisions of the [Criminal Code (CC)] were sufficient or whether a more precise definition of torture was needed had been referred for consideration to the Parliamentary Committee on Legislation. In that respect, the Special Rapporteur shares the views of the Committee against Torture which recommended in May 2002 - after consideration of the second periodic report on implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment submitted by Uzbekistan (CAT/C/53/Add.1) - that Uzbekistan "(a) proceed promptly with plans to review the proposals to amend its domestic penal law to include the crime of torture fully consistent with the definition contained in article 1 of the Convention and supported by an adequate penalty" (CAT/C/CR/28/7, para. 6). Furthermore, the Special Rapporteur notes that the offence contained in article 104 CC, the most serious of the relevant offences in the CC, provides for only up to five years' deprivation of liberty. He would like to recall that article 4, paragraph 2, of the Convention states that "[e]ach State Party shall make these offences punishable by appropriate penalties which take into account their grave nature".

COMPLAINTS PROCEDURES	1. GENERAL PROCURATOR'S OFFICE 29. During the pre-trial detention, complaints must be addressed by alleged victims or persons acting on their behalf to a senior investigator, the head of the relevant MVD or SNB internal investigations department, a civil procurator in the case of MVD officers or a military one in the case of SNB officers. It should be underlined that senior/head investigators have discretionary powers in deciding whether to forward a complaint, with a recommendation or not, to the General Procurator's Office. The latter has the overall prerogative of supervising the criminal investigation. If the complaint is made during the pre-trial detention, there is no recourse possible to a court. As confirmed by the Acting Chairman of the Supreme Court, the court monitoring of a criminal case starts solely when the procurator transfers the criminal file to the court system. It is only at that point that the pre-trial investigation period is reviewed ex post facto by a magistrate. Non-governmental sources alleged that, in practice, this is often a pure formality. 30. The General Procurator stated that it was highly unfortunate that law enforcement officials had committed violations during investigation and pre-trial detention. Once a complaint is received in an official manner from the alleged victim or her/his relatives, an investigation is immediately launched which would lead to a legal decision. Later, the General Procurator confirmed that his Office can actually act proprio motu. If the facts are confirmed, administrative measures, and possibly criminal prosecution, are initiated. Since January 2002, 40 cases have reportedly been lodged against MVD officers for illegal actions. No statistics were, however, provided regarding the number of cases that would fall within the Special Rapporteur's mandate. But the General Procurator noted that in numerous cases the complaints are not confirmed. Appeals against the decision of the procurator may be lodged by the alleged victim or on her/his behalf to a procurator of a higher rank, up to the General Procurator. [.] 2. THE OMBUDSMAN'S OFFICE 31. Pursuant to the 1997 "Law on the Republic of Uzbekistan on the Authorized Person of the Oliy Majlis (Parliament) for Human Rights Ombudsman", the Ombudsman is charged with the monitoring of human rights law. Her work encompasses four areas of activity: the improvement of legislation in the field of human rights; the investigation of human rights complaints and restitution; the provision of (public) information relating to human rights; and cooperation at the international level. [.] 32. During the meeting with the Ombudsman, the overall responsibility of the General Procurator's Office regarding the investigation of alleged illegal actions by law enforcement officials was reiterated. In 2001, an agreement on the collaboration between the Ombudsman's and the General Procurator's Offices was reached with a view to enhancing their cooperation in dealing with complaints and restoring citizens' rights. According to the 2001 Ombudsman's report, 54 per cent of the total number of complaints, i.e. 4,472, were connected with the functioning of the court and law enforcement bodies. They included cases concerning unjustified prolonged investigation of cases, procrastination, unlawful actions by law enforcement officials, contradictory court verdicts or failure to execute them, illegal methods of investigation, violations of the right to counsel for persons under investigation. For the first 11 months of 2002, the Ombudsman had received only six complaints regarding unlawful acts of law enforcement agencies. She stated that as a result of the review of these complaints, criminal cases had been suspended, public officials had been dismissed and investigations had taken place. 33. The Ombudsman stressed that her work needed to be more effective, and she expressed the hope that a new draft law under consideration would give her the right to protest unlawful actions of law enforcement officials and to draw conclusions in cases she would submit to the relevant public authorities, including the General Procurator's Office. She regretted her Office's lack of financial and personnel resources and noted that other State authorities did not always cooperate fully and did not share all relevant information. Impunity 55. Very few torture complaints seem to be investigated, whether they are made during the pre-trial investigation period or at trial. Various officials referred to two recent cases in which law enforcement officers were sentenced to prison terms after having been convicted of torture (see the case of Ali Muhammad Mamadaliev and Ravshan Haitov in appendix II). [.] The General Procurator told the Special Rapporteur that in the 10 first months of 2002, 40 members of the MVD had had criminal charges brought against them, including for offences such as abuse of authority and hiding of information. In particular, he referred to the Haitov case in which his Office had sent an investigation team to the police station concerned and had launched a criminal case resulting in long prison terms. The Minister of Internal Affairs stated that his Ministry was dealing very seriously with its personnel suspected of having or found to have violated human rights, and that this had led to some prosecutions. [.] 56. At the pre-trial detention phase, there is no independent body capable of investigating torture complaints as the General Procurator's Office would ultimately be in charge of the investigations. In particular, the Special Rapporteur notes with serious concern that in the very high profile case of Iskander Khudoberganov et al. (see appendix II), the General Procurator denied having received any complaints regarding alleged torture and other forms of ill treatment. The Special Rapporteur notes that, according to the information he has received, not only were complaints made during the actual trial, but they were also formally forwarded by relatives of the defendants to the General Procurator's Office. Finally, they were widely reported by human rights organizations, including through press releases. 57. It must also be noted that there is no legal obligation for a judge to order an investigation into complaints made during a trial. It is reported that a judge would at most call upon the officer allegedly responsible and ask her/him to testify in court that s/he did not torture the suspect. Other evidence, such as medical reports or registry records, is disregarded. Even when the defendant bears visible marks of torture or ill-treatment, judges would usually conclude that torture allegations were made in an attempt to avoid being sentenced and will admit confessions as decisive evidence.

Conclusions and Recommendations	66. [.] The excessive powers in the overall criminal proceedings of procurators, who are supposed at the same time to conduct and supervise preliminary criminal investigations, to bring charges and to monitor respect for existing legal safeguards against torture during criminal investigations and in places of detention, make investigations into complaints overly dependent on their goodwill. (a) [.] The highest authorities, in particular those responsible for law enforcement activities, should declare unambiguously that they will not tolerate torture and similar ill-treatment by public officials and that those in command at the time abuses are perpetrated will be held personally responsible for the abuses. The authorities need to take vigorous measures to make such declarations credible and make clear that the culture of impunity must end; (b) The Government should amend its domestic penal law to include the crime of torture the definition of which should be fully consistent with article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and supported by an adequate penalty; (e) The Government should ensure that all allegations of torture and similar ill treatment are promptly, independently and thoroughly investigated by a body, outside the procuracy, capable of prosecuting perpetrators; (f) Any public official indicted for abuse or torture should be immediately suspended from duty pending trial; (g) The Ministry of Internal Affairs and the National Security Service should establish effective procedures for internal monitoring of the behaviour and discipline of their agents, in particular with a view to eliminating practices of torture and similar ill treatment. The activities of such procedures should not be dependent on the existence of a formal complaint; (q) Where there is credible evidence that a person has been subjected to torture or similar ill-treatment, adequate reparation should be promptly given to that person; for this purpose a system of compensation and rehabilitation should be put in place; (r) The Ombudsman's Office [.] should be granted the authority to [.] submit evidence of criminal behaviour to the relevant prosecutorial body and the administrative superiors of the public authority whose acts are in question; (v) The Government is invited to make the declaration provided for in article 22 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment recognizing the competence of the Committee against Torture to receive and consider communications from individuals who claim to be victims of a violation of the provisions of the Convention[..]

E/CN.4/2004/56/Add.2- 6 February 2004 Visit by the Special Rapporteur to Spain
Investigations, prosecutions and reparations	45. [.] Non governmental sources pointed to the role of the judicial process in perpetuating impunity - the pattern of nominal sentences for law enforcement officers convicted of torture or ill treatment, the availability of pardons, lax enforcement of sentences, discrepancies in standards of forensic medical reporting, as well as the continued practice of incommunicado detention - as contributory factors in the failure to eradicate torture and ill-treatment. The length of the judicial process is reportedly often so great that by the time a trial opens, accused officers may not be tried because the statute of limitations for the offence has expired. 50. According to non-governmental sources, an examination of definitive court sentences brought against alleged perpetrators of torture and ill-treatment indicates that a majority of the victims of torture or ill-treatment whose complaints have been validated by the courts have had to wait more than 7 years from the moment of the incident before receiving a compensation award, and some have had to wait for between 15 and 19 years. There is reportedly no effective legislation in Spain guaranteeing fair and adequate compensation to torture victims in line with obligations under international law, including the means for as full rehabilitation as possible, in line with obligations under article 14 of the Convention against Torture. Standards used by the courts to calculate the amount of compensation are those set under the Insurance Law, which are applicable to injuries sustained in accidents (delitos no dolosos) and do not relate to injuries inflicted deliberately and with intent. Thus, they fail to take into account - or underestimate - the psychological effect of injury to the victim's moral integrity. It is of concern that the inadequacy of legislation and regulation in this area means that torture victims are not provided with the means for the fullest possible rehabilitation.

Conclusions	59. The Convention sets out a series of obligations to prevent and suppress practices of torture and ill treatment. Great importance must be attached to the obligation to undertake a prompt and impartial investigation whenever there is reasonable ground to believe that an act of torture has been committed (art. 12) and to the duty to have allegations and complaints of torture promptly and impartially examined (art. 13). The Spanish legal system does provide for investigative mechanisms and procedures, but there are a number of reasons why this investigative capacity is underutilized and often ineffective. The denial that the practice of torture or ill treatment occurs, the deterrent, repeatedly reported to the Special Rapporteur, that allegations of torture are countered by criminal charges of defamation, and the questionable independence and impartiality of internal accountability mechanisms with regard to law enforcement officials are among the factors that contribute to the absence of an effective and prompt investigative practice and policy as regards the issue of torture and ill treatment.

Recommendations	64. The highest authorities, in particular those responsible for national security and law enforcement, should officially and publicly reaffirm and declare that torture and cruel, inhuman or degrading treatment or punishment are prohibited under all circumstances and that information on and allegations of the practice of torture in all its forms will be promptly and thoroughly investigated. 69. Complaints and reports of torture or ill-treatment should be investigated promptly and effectively. Legal action should be taken against the public officials involved, and they should be suspended from their duties pending the outcome of the investigation and any subsequent legal or disciplinary proceedings. The investigation should be independent of suspected perpetrators and the agency they serve. Investigations should be carried out in accordance with the Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the General Assembly in its resolution 55/89. 70. Legal provisions should be effectively and expeditiously implemented to ensure that victims of torture or ill-treatment obtain redress and adequate reparation, including rehabilitation, compensation, satisfaction and guarantees of non repetition.

E/CN.4/2004/56/Add.3- 13 February 2004 Follow-up to the recommendations made by the Special Rapporteur Visits to Azerbaijan, Brazil, Chile, Mexico, Romania, Turkey and Uzbekistan
Azerbaijan	5. [.] if it is found that a citizen's rights have been violated by the investigator or person carrying out the initial inquiry, to take the necessary steps to redress such violations.

Brazil	50. According to the information received, the organs responsible for investigating allegations of torture are mainly controlled by the very institutions that are involved in its perpetration. In addition, the lack of budgetary autonomy of the ombudsmen allegedly hinders their ability to carry out their work in an autonomous and objective manner. 51. The Special Rapporteur has also been informed that no effective measures have been taken to suspend from duty the law enforcement officers against whom a torture complaint has been filed. In some cases, they have reportedly been transferred but not dismissed. 52. The Special Rapporteur has further been informed that some individuals who were involved in torture cases during the military dictatorship continue to hold public offices and have even received recognition and promotion.

Turkey	255. The Government reported that through the amendment of the Law on Public Servants, compensation for torture and other cruel, inhuman or degrading treatment to be paid by the relevant State institution in compliance with the judgements of the European Court of Human Rights shall be reimbursed by the responsible officials. 256. The last paragraph of article 19 of the Constitution on the right to seek compensation from the State for persons subjected to treatment contrary to those provisions has been amended and now reads as follows: "damages suffered by persons subjected to treatment contrary to the above provisions shall be compensated according to the principles of the law on compensation".