OX FOR D C OM M E N TA R I E S ON

I N T E R N AT ION A L L AW
General Editors: Professor Philip Alston, Professor of International Law
at New York University, and Professor Vaughan Lowe, Chichele Professor
of Public International Law in the University of Oxford and Fellow of
All Souls College, Oxford.

The United Nations Convention

Against Torture

A Commentary

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 The United Nations
Convention Against
Torture
A Commentary

M A N FR E D NOWA K
E L I Z A BE T H Mc A RT H U R

with the contribution of

Kerstin Buchinger
Julia Kozma
Roland Schmidt
Isabelle Tschan
Ludwig Boltzmann Institute of Human Rights Vienna

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 448 United Nations Convention Against Torture
in this instance in interpreting the requirements of promptness and imparti-
ality under Article 13.²⁸

4. Issues of interpretation
4.1 Right of Victims of Torture and Ill-Treatment to Complain
to a Competent Authority
27 The formulation of Article 13 indicates that any individual who alleges
that he or she has been subjected to torture (or ill-treatment) has an independ-
ent right to complain to a competent authority. A mere allegation of torture
or ill-treatment should, therefore, suffice, i.e. the form of the complaint is not
important.²⁹ In the early case of Parot v. Spain, the Committee noted that ‘in
principle, article 13 of the Convention does not require the formal submission
of a complaint of torture. It is sufficient for torture only to have been alleged
by the victim for the state to be under an obligation promptly and impartially
to examine the allegation.’³⁰
28 This interpretation was further elaborated in the leading case of Blanco
Abad v. Spain, in which the Committee stated as follows: ‘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 tacit but unequivocal expression of the victim’s wish that the facts
should be promptly and impartially investigated, as prescribed by this provi-
sion of the Convention’.³¹ This liberal interpretation, which clearly conforms
to the object and purpose of this provision, was confirmed in later cases against
Tunisia³² and Serbia and Montenegro.³³
29 In the State reporting procedure, the Committee expressed concern
about undue restrictions of the right to complain.³⁴ In its concluding obser-
vations on the third periodic report of France, it criticized, for example, the

²⁸ See above, Art. 12, 3.3.

²⁹ Cf. Wendland, 53.
³⁰ No. 6/1990, § 10.4. See above, 3.2 .
³¹ No. 59/1996, § 8.6. See above, 3.2.
³² Cf. Abdelli v. Tunisia, No. 188/2001, § 10.6; Ltaief v. Tunisia, No. 189/2001, § 10.6. See
above, 3.2 and above, Art 12, 3.2.
³³ Cf. Dimitrov v. Serbia and Montenegro, No. 171/2000, § 7.2. See above, 3.2.
³⁴ See above, 3.1. See also Ingelse, 367.

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 Article 13. Right of Victims to Complain 449
limited access to the National Commission on Security Ethics.³⁵ In relation to
Nepal, it found the statute of limitation of 35 days for complaining about acts
of torture under the Torture Act of 1996 as inconsistent with the guarantees
provided for in Article 13.³⁶ In general, the right to lodge a complaint and the
corresponding State obligation to carry out a prompt and impartial investiga-
tion should not be dependent on any discretion of State authorities.³⁷
30 It follows that States must provide the necessary procedures for victims of
torture and ill-treatment to exercise their right to complain in a non-bureaucratic
manner without fear of reprisals. Particular measures need to be taken in rela-
tion to detainees. In places of detention, there should be the possibility to lodge
both oral and written, ideally even anonymous, complaints which need to be
forwarded by the detention authorities to the competent investigation body.³⁸
In principle, every person working in a detention facility has the obligation
to forward a complaint to a competent authority. Unless a special proced-
ure has been established to receive such complaints, doctors who carry out
medical examinations in a detention facility might be the persons to whom
detainees prefer to complain. Other possible addressees of such complaints
might be prison chaplains, social workers, resident prosecutors and other bod-
ies entrusted to monitor conditions in detention and/or carrying out prison
inspections.
31 Detainees should also be informed about their right to complain about
torture and ill-treatment and about the respective procedures available to
them. Other rights of detainees, such as prompt access to family members,
counsel and a doctor of their choice, as well as the right to lodge a writ of habeas
corpus to an independent judge facilitate the exercise of the right to complain
about torture and ill-treatment.³⁹

4.2 Obligation of States Parties to Proceed to a Prompt and

Impartial Investigation
32 While ex officio investigations under Article 12 depend on the existence
of a ‘reasonable ground to believe’ that an act of torture or ill-treatment has

³⁵ CAT/C/FRAU/CO/3, § 22.
³⁶ CAT/C/NPL/CO/2, § 28. Cf. also the obiter dictum in the Argentine Punto Final cases, Nos. 1,
2 and 3/1988, § 9: ‘The Committee observes, however, that even if the Convention against Torture
does not apply to the facts of these communications, the State of Argentina is morally bound to pro-
vide a remedy to victims of torture and to their dependants’. See also below, Art.14, 3.2.
³⁷ Cf. Ingelse, 367.
³⁸ Cf. Burgers/Danelius, 145.
³⁹ See also A/56/44, § 82(c).

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 450 United Nations Convention Against Torture
been committed, the duty to investigate under Article 13 is triggered by the
mere allegation by a victim.⁴⁰ This does, of course, not preclude the quick clos-
ure of such an investigation if it appears, on the basis of reliable facts, that the
complaint is fabricated or clearly unfounded.⁴¹ But, as a minimum, the com-
petent authorities shall hear the complainant and enable a doctor to examine
him or her.⁴²
33 All complaints about torture shall be investigated promptly and impar-
tially by competent authorities. Since the standards of such investigations
seem to be the same as under Article 12, reference may be made to the relevant
chapters.⁴³

4.3 Obligation of States Parties to Protect Complainants and

Witnesses against Reprisals
34 Since both victims and witnesses of an act of torture or ill-treatment are
often afraid to complain and provide evidence, the right to complain and the
corresponding State obligation to investigate necessarily imply the obligation
of States to protect complainants and witnesses against such reprisals. This is
particularly important for detainees. The original Swedish draft had contained
the phrase ‘without threat of further torture or other cruel, inhuman or degrad-
ing treatment or punishment’. Despite the proposal by Austria and Denmark
to delete this phrase, it was strengthened in the revised Swedish draft by a
separate sentence requiring States parties to protect the complainant against
‘ill-treatment in consequence of his complaint’. During the discussions in the
Working Group in 1980 this sentence was further strengthened by also includ-
ing the protection of witnesses against ill-treatment and intimidation.⁴⁴
35 Article 13 requires that ‘steps shall be taken’ by States parties to ensure
victim and witness protection without further elaborating on such steps. In the
case of detainees (both victims and witnesses) one might think of removing
them to another place of detention or at least of a change of personnel respon-
sible for them.⁴⁵ Another step might be to suspend the accused officials from
duty, to assign special personnel to victims and witnesses or to arrange for
regular examinations by doctors. In general, if prison directors, police chiefs

⁴⁰ See Ingelse, 367 with references to the practice of the Committee.

⁴¹ See Burgers/Danelius, 145.
⁴² Cf. also Ingelse, 367 and CAT/C/SR.203, § 38.
⁴³ See above, Art. 12, 4.2, 4.3 and 4.4.
⁴⁴ See above, 2.
⁴⁵ See Burgers/Danelius, 146; Wendland, 53.

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 Article 13. Right of Victims to Complain 451
and other government authorities seem to be clear about fighting impunity and
taking torture complaints seriously then the risk of reprisal is also smaller.
36 In its concluding observations after the examination of the fourth peri-
odic report of Peru, the Committee recommended that the Government of
Peru should investigate all reports of intimidation of witnesses and set up an
appropriate mechanism to protect witnesses and victims.⁴⁶ The ICTY, ICTR
and ICC have developed extensive programmes for the protection of victims
and witnesses which may be used as a model for States in order to protect
victims and witnesses of torture, inside and outside detention, against ill-
treatment and intimidation.⁴⁷ For instance, according to Article 43(6) of the
Rome Statute of the ICC:
The Registrar shall set up a Victims and Witnesses Unit within the Registry. This
Unit shall provide, in consultation with the Office of the Prosecutor, protective meas-
ures and security arrangements, counselling and other appropriate assistance for wit-
nesses, victims who appear before the Court, and others who are at risk on account
of testimony given by such witnesses. The Unit shall include staff with expertise in
trauma, including trauma related to crimes of sexual violence.

⁴⁶ CAT/C/PER/CO/4, § 20; see also CAT/C/LKA/CO/2, § 15.

⁴⁷ See e.g. Art. 22 ICTY Statute and Rules 69 and 75 of the Tribunal’s Rules of Procedure and
Evidence. See also Rule 34 ICTR RoP and Art 43(6) of the Rome Statute.

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