The case of "Lucia Chernakova v. the Slovak Republic". The decision of the Committee against Torture of November 19, 2021. Communication No. 890/2018.
In 2018, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to the Slovak Republic.
As could be seen from the text of the Decision, the applicant claimed that as a result of being placed in a cot, she was subjected to a form of violence that could be considered torture or other cruel, inhuman or degrading treatment. The use of beds in social welfare institutions in health care institutions is disproportionately and discriminatively applied to persons with intellectual and psychosocial disabilities (paragraph 3.1 of the Decision).
The Committee's legal positions: In its decisions and in its general comment No. 2 (2007), the Committee considered the risk of being subjected to torture and ill-treatment by non-State actors and the failure of the State to exercise due diligence in the form of intervention for the purpose of suppressing abuses unacceptable under the Convention as circumstances for which the State may be responsible. He also recalls that ill-treatment can be committed through actions or omissions that do not require intent, since negligence alone may be sufficient (paragraph 9.3 of the Decision).
The Committee notes that the obligation to prevent ill-treatment in practice echoes and largely coincides with the obligation to prevent torture, that the line between ill-treatment and torture is often blurred and that conditions leading to ill-treatment often contribute to torture and therefore the measures necessary to prevent torture should also be applied to prevent ill-treatment (paragraph 9.4 of the Decision).
The Committee recalls that one of the objectives of the Convention is to prevent persons who have committed acts of torture or ill-treatment from going unpunished. In addition, the elements of intent and purpose provided for in article 1 of the Convention do not imply a subjective identification of the motives that guided the perpetrators, and that instead they need to give an objective conclusion that ill-treatment differs from torture in the degree of pain and suffering, without requiring proof of purpose, and that ill-treatment may be caused by negligence (paragraph 9.5 Solutions).
The Committee points out that the obligation to monitor the prevention of torture and ill-treatment applies to situations in which violence is used both officially and privately (paragraph 9.6 of the Decision).
The Committee recalls the State party's obligation under article 12 of the Convention to ensure that its competent authorities initiate a prompt and impartial investigation in all cases where there are reasonable grounds to believe that an act of torture has been committed (See: Niyonzima v. Burundi (CAT/C/53/D/514/2012), paragraph 8.4; and the case of Ramirez Martinez et al. v. Mexico (CAT/C/55/D/500/2012), paragraph 17.7.). Such an investigation should be prompt, impartial and effective (See: the case of E.Z. v. Kazakhstan (CAT/C/53/D/495/2012), paragraph 13.2.). The criminal investigation should be aimed at determining the nature and circumstances of the alleged acts, identifying persons who may have been involved in them (See: the case of F.K. v. Denmark (CAT/C/56/D/580/2014), paragraph 7.7; and the case of Jemail et al. v. Yugoslavia (CAT/C/29/D/161/2000), paragraph 9.4.), providing appropriate compensation to the victim and combating impunity for violations of the Convention. The Committee noted that article 12 applies equally to allegations of cruel, inhuman or degrading treatment or punishment. Accordingly, the Committee considers that intentional ill-treatment of a person under the control of State or non-State actors acting as public officials cannot be remedied solely by awarding compensation to the victim (paragraph 9.7 of the Decision).
As confirmed by the Committee in paragraph 17 of its general comment No. 3 (2012) on the implementation of article 14, a State party may violate article 14 of the Convention, which requires States parties to ensure that victims of torture or ill-treatment receive redress by failing to effectively investigate, prosecute perpetrators or allow civil proceedings in the in connection with allegations of acts of torture or ill-treatment. When acts of torture or ill-treatment are committed by non-State officials or private actors, the State is responsible for any failure to exercise due diligence to prevent and investigate such acts or to prosecute and punish such non-State officials or private actors in accordance with the Convention, as well as to provide redress to victims. The Committee recalls that the provision of monetary compensation alone is insufficient for the State party to comply with its obligations under article 14, and that the right to reparation requires the initiation or completion of investigations into complaints of torture or ill-treatment without undue delay (See Zentveld v. New Zealand (CAT/C/68/D/852/2017), paragraph 9.9.) and that both civil and criminal remedies should be available to victims, which should be effective <31> (paragraph 9.8 of the Decision).
The Committee's assessment of the factual circumstances of the case: the question before the Committee was whether the applicant's detention in a cot on 9 July 2006 amounted to a form of violence and harm in violation of her rights under articles 2 (paragraph 1), 4 (paragraph 1), 11, 12, 14 (paragraph 1) and 16 (paragraph 1) of the Convention (paragraph 9.2 of the Decision).
With regard to the allegations of violation of the applicant's rights under article 16 (paragraph 1), the Committee took note of her argument that her confinement in a cot in a social security facility was not justified by medical necessity and similarly unacceptable means of restraint applied to persons deprived of liberty. She stated that she was intentionally detained for the purpose of disciplinary action, employees of the social security institution acted as public officials and she was deprived of her liberty in accordance with an administrative decision. The Committee also took into account the allegation that such treatment caused the applicant severe pain and suffering, which amounted to cruel, inhuman or degrading treatment, if not torture, and that similar means of restraint were applied disproportionately to persons with intellectual and psychosocial disabilities and to women. In addition, the Committee took note of the allegation that the use of beds is still legal in the State party's health facilities and that common standards of quality of care have not been adopted. The Committee also drew attention to the State party's argument that not every act can be qualified as ill-treatment under article 16, however, it noted that the Constitutional Court recognized that the applicant may have been subjected to degrading treatment... Based on the available information, the Committee concluded that the applicant's allegations should be fully taken into account, namely, her statements that the means of restraint were used against her by employees of the social security institution in Mana, acting as public officials and on behalf of the State, and that the act in question had reached an intensity and harmful consequences equivalent to ill-treatment within the meaning of article 16 (paragraph 1) of the Convention (paragraph 9.3 of the Decision).
With regard to the alleged violation of article 2 (paragraph 1), the Committee drew attention to the complainant's complaints that the State party had not taken effective measures to prevent acts of torture or ill-treatment, given that she had been held in a cot during her imprisonment without adequate protection from abuse and violence. Although the applicant filed several complaints in connection with this incident, it was not effectively investigated... The Committee noted that the use of the cot was illegal under Slovak law in force at the time and that the State party had acknowledged that in the applicant's case the national court had found a violation of the Law on Social Assistance, including the fact that the duration of the use of restraints on the applicant had not been recorded in a special journal. The Committee considered that the confirmation by the Regional Office in Nitra of a violation of national legislation without eliminating harmful consequences for the applicant was not an effective means of combating ill-treatment in order to prevent its recurrence. In addition, no information was provided on the measures taken to remedy the situation with the absence of a record of the duration of the use of restraint measures against the applicant. The Committee concluded that there had been a violation of article 2 (paragraph 1), read in conjunction with article 16 (paragraph 1) of the Convention (paragraph 9.4 of the Decision).
With regard to the allegations under article 4 (paragraph 1), the Committee has taken into account the State party's argument that article 420 of its Criminal Code provides broader protection because it criminalizes acts of both torture and ill-treatment, and its statement that article 4 of the Convention requires criminalization only of torture. The Committee, however, took note of the objection to this argument on the part of the complainant, noting that the definition of the relevant crime mixes the concepts of "torture" and "ill-treatment", since it does not define the elements of torture and does not distinguish between acts of torture and ill-treatment on the basis of mens rea (Denoting criminal law the category of the subjective component of the criminal act by the term.), since intent is required even in cases of degrading treatment. The applicant claims that this leads to the impossibility of conducting an effective criminal investigation and to de facto impunity for acts of torture or ill-treatment committed against women with disabilities in specialized institutions... The Committee notes that although the fact of the use of restraining measures against the applicant was officially reviewed by the authorities, however, the consideration of her complaint was suspended on the grounds that the formal elements of article 420 of the Criminal Code were not respected, without investigating or punishing the perpetrators of ill-treatment. The Committee concluded that there had been a violation of article 4 (paragraph 1) of the Convention (paragraph 9.5 of the Decision).
The Committee drew attention to the complainant's allegation of a violation of article 11 of the Convention, given that the State party had failed to comply with its obligation to establish an effective and independent system for monitoring complaints of torture or ill-treatment and external and civilian inspections, including monitoring and prevention mechanisms, to protect persons with disabilities in specialized institutions from any acts ill-treatment. The applicant also claimed that article 11 had been violated because the State party had failed to carry out the necessary supervision over the use of means of restraint against her, the duration of which was not recorded... In view of the lack of convincing evidence from the State party that the conditions under which the means of restraint were applied to the applicant were supervised, the Committee concluded: the State party violated article 11 of the Convention (paragraph 9.6 of the Decision) (See: Gahungu v. Burundi (CAT/C/55/D/522/2012), paragraph 7.7.).
With regard to the alleged violation of article 12, the Committee took note of the applicant's argument that the authorities did not investigate the incident that occurred on 9 July 2006, did not bring the perpetrators to justice and did not apply appropriate criminal sanctions. The Committee also took into account the objection to this argument from the State party, which indicated that the applicant's application for criminal proceedings had been considered, but the proceedings had been suspended. Although an investigation was launched, the State party did not prosecute the alleged perpetrators of ill-treatment and stated that the material elements of the crime had not been identified. The Committee noted that the State party also objected to this argument on the grounds that the applicant did not claim compensation for non-pecuniary damage..... In the circumstances of the case, the Committee concluded that the State party had failed to comply with its obligations under article 12 of the Convention (paragraph 9.7 of the Decision).
With regard to the alleged violation of article 14 (paragraph 1), the Committee took into account the State party's argument that effective remedies had been provided during administrative and criminal investigations, while compensation could not be provided because the fact of torture had not been established. The Committee determined that the criminal investigation had been suspended without identifying the perpetrators; the applicant had not received any compensation, rehabilitation or satisfaction for the physical and moral harm caused to her; No steps have been taken to prevent the use of bunks in the future.... The Committee considered that the applicant had been denied her right to effective reparation and compensation in accordance with article 14 (paragraph 1) of the Convention (paragraph 9.8 of the Decision).
The Committee's conclusions: The facts presented constituted violations of article 2 (paragraph 1), read in conjunction with article 16 (paragraph 1), articles 4 (paragraph 1), 11, 12, 14 (paragraph 1) and 16 (paragraph 1) of the Convention.