The decision of the Committee against Torture of 11 August 2017 in the case of Rashed Jaidan v. Tunisia (communication No. 654/2015).
In 2015, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Tunisia.
Subject matter: Torture and ill-treatment by State authorities.
Substantive issue: torture; cruel, inhuman or degrading treatment or punishment; measures to prevent acts of torture; systematic monitoring of conditions of detention and methods of treatment of prisoners; obligation of the State party to ensure prompt and impartial investigation by competent authorities; right to file a complaint; right to compensation; prohibition of use during any judicial review of statements obtained under torture.
The Committee's legal position: article 4 of the Convention against Torture requires States parties to criminalize acts of torture and to impose penalties commensurate with the severity of the acts committed against those responsible for acts of torture (paragraph 7.7 of the Decision).
The Committee reminds the State party of its obligation under article 12 of the Convention, according to which, if there are sufficient grounds to believe that torture has been committed, a prompt and impartial investigation should be conducted ex officio (Latin).) (See communications Niyonzima v. Burundi, paragraph 8.4; and N 500/2012, Ramirez Martinez et al. v. Mexico, Decision adopted on August 4, 2015, paragraph 17.7.). Such an investigation must be prompt, impartial and effective (See communication No. 495/2012, N.Z. v. Kazakhstan, Decision adopted on November 28, 2014, paragraph 13.2.). In addition, the criminal investigation should aim both to determine the nature and circumstances of the alleged acts and to establish the identity of any person who may have been involved in them (paragraph 7.10 of the Decision) (See communications No. 580/2014, F.K. Denmark, Decision adopted on November 23, 2015, paragraph 7.7; and No. 161/2000, Dzemail et al. v. Yugoslavia, Decision adopted on November 21, 2002, paragraph 9.4.).
The Committee's assessment of the factual circumstances of the case: With regard to the complaint under article 1 of the Convention, the Committee takes note of the complainant's allegations that he was tortured by officials of the State party, which did not take any effective measures to prevent the commission of these acts. The Committee notes, firstly, that the applicant was arrested on the night of 29-30 July 1993 and then taken to the Ministry of the Interior, where he was interrogated and illegally detained for 20 days. The Committee notes that the complainant has provided a detailed description of the horrific torture he was subjected to at the Ministry of the Interior when he was under the supervision of National Security Service officers, whom he identified and named. The Committee also notes that in prison...The applicant was tortured several times, held in solitary confinement and was denied medical care for a long period of time, despite the obvious need for care (paragraph 7.3 of the Decision).
The Committee also takes note of the complainant's allegations of numerous physical and psychological consequences of torture, which are confirmed by the medical reports provided in this regard. The Committee notes that the State party has not disputed these allegations. In the circumstances and on the basis of the information made available to it, the Committee finds that the complainant's allegations must be taken into account; that the physical violence to which he was subjected was committed by officials of the State party who acted in an official capacity; and these actions constitute acts of torture within the meaning of article 1 of the Convention (paragraph 7.4 of the Decision).
Author...Recalls article 2, paragraph 1, of the Convention, according to which the State party should have taken effective legislative, administrative, judicial and other measures to prevent acts of torture in any territory under its jurisdiction. The Committee notes in the present case that the applicant was arrested without a warrant; he was held incommunicado in the Ministry of Internal Affairs from 30 July to 4 September 1993, for 37 days, which significantly exceeds the maximum allowed period of up to four days; The verification of the legality of his detention was not carried out within the time limits prescribed by law; and during his pre-trial detention, he was denied the opportunity to contact his family and receive medical assistance necessary in his condition. Although he has been the victim of extreme ill-treatment, as he has reported several times, these acts remain unpunished. Accordingly, the Committee finds a violation of article 2, paragraph 1, in conjunction with article 1 of the Convention (paragraph 7.6 of the Decision) (See communications of Niyonzima v. Burundi, paragraph 8.3; and No. 522/2012, Gahungu v. Burundi, Decision adopted on August 10, 2015, paragraph 7.6.).
With regard to the alleged violation of article 4 of the Convention, the Committee refers to one of the objectives of the Convention: to prevent impunity for perpetrators of acts of torture (See communication No. 212/2002, Urra Guridi v. Spain, Decision adopted on 17 May 2015, paragraph 6.7.) ... The Committee recalls that in this case more than 21 years have passed since the events However, the case was never examined in order to bring to justice and punish those responsible for the use of torture against the applicant. In addition, the Committee notes that, taking into account the principle of non-retroactivity of article 101 bis on the criminalization of torture, the accused were prosecuted for an offence carrying a maximum penalty of five years in prison, although the severity of the charges against them implies the initiation of criminal proceedings and appropriate penalties...The Committee recalls its concluding observations, in which it expressed concern about the application of the principle of non-retroactivity of criminal law in relation to acts, crimes committed prior to the inclusion of the crime of torture in the revised Criminal Code of 1999 (article 101 bis), as well as, as a result, a recommendation to the State party "to take all necessary measures to ensure that acts of torture committed before 1999 are prosecuted as offences for which measures are provided penalties appropriate to the severity of the offense" (see CAT/C/TUN/CO/3, paragraphs 35 and 36). The Committee concludes that there has been a violation of article 4, paragraph 2, of the Convention (paragraph 7.7 of the Decision).
The Committee also notes the complainant's argument that article 11 [of the Convention] appears to have been violated, since the State party did not exercise the necessary supervision over the methods of treatment to which the author was subjected during his arrest and detention. He claimed, in particular, that his arrest and detention were not accompanied by due process guarantees and were not supervised; that he was denied medical care despite the critical condition in which he was; and that he was repeatedly denied the opportunity to contact his family; He was denied legal assistance during his pre-trial detention; and he was held in appalling conditions. In the absence of convincing information from the State party that could demonstrate that the applicant's detention took place under the supervision of the State party, the Committee finds a violation by the State party of article 11 of the Convention (paragraph 7.8 of the Decision) (See Gahungu v. Burundi, paragraph 7.7.).
With regard to articles 12 and 13 of the Convention, the Committee expresses concern that, despite the registration of the complainant's complaint of torture in 2011 in the Tunisian Court of First instance, the investigation was terminated on 16 February 2012 without a real investigation, despite the fact that about 21 years have passed since the victim He first reported the facts during a meeting with the investigator, which took place at the end of his detention in the Ministry on September 4, 1993 (paragraph 7.9 of the Decision).
Although the State party claims that an investigation has been initiated, it has not provided any detailed information on the status of the trial or on the prosecution of the alleged perpetrators of acts of torture and ill-treatment (paragraph 7.10 of the Decision).
The complainant considers that the State party has not fulfilled its obligation under article 12 of the Convention. By failing to comply with this obligation, the State party also failed to comply with its obligation under article 13 of the Convention, according to which it was obliged to ensure the applicant's right to file a complaint with the competent authorities, who should respond appropriately to it and conduct a prompt and impartial investigation (paragraph 7.11 of the Decision) (See Niyonzima v. Burundi, paragraph 8.5.).
With regard to article 14 of the Convention, the applicant claims that by denying him criminal proceedings, as mentioned above, Tunisia also deprived him of the right to receive compensation in accordance with the procedure established by law for material and moral damage caused as a result of serious crimes such as torture. The Committee also notes that the victim did not take any rehabilitation measures due to the severe physical and psychological consequences from which he still suffers and which were clearly recorded in the medical report...The Committee considers that the applicant has been deprived of the right to compensation and reparation in accordance with article 14 of the Convention (paragraph 7.12 of the Decision).
With regard to article 15 of the Convention, the Committee took note of the complainant's claim that the proceedings initiated against him and the sentence of 21 years in prison were established on the basis of a protocol that he signed under torture. Despite the fact that he reported torture, his allegations were never verified by the authorities and the statements were not invalidated. The State party has not provided any arguments capable of refuting this claim. The Committee recalls that the general meaning of the provisions of article 15 [of the Convention] follows from the absolute nature of the prohibition of torture and, consequently, implies the obligation of any State party to verify whether statements have been made under torture that serve as elements of the procedure within its competence (See communications No. 419/2010, Ktiti v. Morocco, Decision, Adopted on 26 May 2011, paragraph 8.8; P.E. v. France, paragraph 6.3; and Niyonzima v. Burundi, paragraph 8.7.). By failing to undertake any necessary checks and by using such statements in the course of the proceedings against the applicant, the State party has clearly violated its obligations under article 15 of the Convention (paragraph 7.13 of the Decision).
The Committee's conclusions: submitted...The facts reveal a violation of article 2 (paragraph 1) in conjunction with article 1 and articles 4, 11, 12, 13, 14 and 15 of the Convention (paragraph 8 of the Decision).