Message: Tawfiq Elaiba against Tunisia. Message No. 551/2013. The decision was adopted by the Committee against Torture (hereinafter referred to as the Committee) on May 6, 2016.
In 2013, the author 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 supervision of detention and treatment of prisoners; the obligation of the State party to ensure that the competent authorities conduct a prompt and impartial investigation; the right to file complaints; the right to compensation; prohibition of the use of during the trial of testimony obtained under torture.
The Committee's legal position: 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 taken place, a prompt and impartial investigation should be conducted ex officio (According to official position) (See communications No. 514/2012, Niyonzima v. Burundi, Decision adopted on November 21, 2014, 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 should be prompt, impartial and effective, while promptness is important, since this makes it possible to stop the use of such actions against the victim, as well as for the reason that, except in cases of long-term or serious injuries caused by the use of the above-mentioned methods, physical traces of torture, and above all traces of cruel, inhuman or degrading treatment, as a rule, disappears after a short time (See communication No. 495/2012, E.Z. v. Kazakhstan, Decision adopted on November 28, 2014, paragraph 13.2.). In addition, the criminal investigation should aim at both determining the nature and circumstances of the alleged acts and establishing the identity of any person who may have been involved in them (paragraph 7.7 of the Decision) (See Communications No. 580/2014, F.K. v. Denmark, Decision adopted on November 23, 2015, paragraph 7.7; and N 161/2000, Dzemail et al. v. Yugoslavia, Decision adopted on November 21, 2002, paragraph 9.4.).
The provision of article 14 of the Convention not only recognizes the right to fair and adequate compensation, but also imposes an obligation on States parties to ensure that a victim of torture receives appropriate compensation (See communication No. 291/2006, Saadia Ali v. Tunisia, Decision adopted on November 21, 2008, paragraph 15.8.). The Committee considers that reparation should cover the totality of the damage caused to the victim and include, among other measures, restitution, compensation and rehabilitation of the victim, as well as measures to ensure that violations cannot be repeated, taking into account the circumstances of each case (paragraph 7.7 of the Decision) (See Saadia Ali v. Tunisia, paragraph 15.8; and Niyonzima v. Burundi, paragraph 8.6.).
The general thrust of the provisions of article 15 of the Convention is based on the absolute prohibition of torture and therefore implies the obligation of each State party to verify whether the statements used in any proceedings within its jurisdiction were obtained through torture (paragraph 7.8 of the Decision) (See Niyonzima v. Burundi, paragraph 8.7; and communication No. 419/2010, Kti v. Morocco, Decision adopted on 26 May 2011, paragraph 8.8.).
The Committee's assessment of the factual circumstances of the case: The Committee takes note of the complainant's allegations that the State party failed to take all effective measures to prevent torture and cruel, inhuman and degrading treatment during his interrogation at the National Guard station in El Aouin in September 2009...The Committee notes the applicant's allegations that for six days the National Guard officers severely beat him in the face; they beat him with rubber batons on the soles of his feet for almost 5 minutes; they put a motorcycle helmet on his head and beat him with a baseball bat for about 15 minutes; tied his wrists and ankles to a large wheel fixed on the wall and spun him first one way, then the other way until he lost consciousness; directed a jet of gas at his genitals; tortured him with electric discharges; beat him on the fingers with various objects And they tore out his thumbnail...The Committee notes that, according to the complainant, he was held incommunicado for six days; He was given only one sandwich daily and allowed to use the toilet once a day; during the entire period of detention, he was not provided with any medical assistance, despite the fact that he had an open wound on his stomach resulting from the use of force during detention; in between interrogations and torture, he remained tied to a chair; when he asked to read the protocols, he was beaten, in addition, one of the employees forged the date in the protocol on his detention before signing it (paragraph 7.3 of the Decision).
[D]The State party has not refuted any of these allegations, and indicates that the applicant, during his examination upon admission to prison, indicated that he had been subjected to acts of violence for 10 days prior to his detention. The Committee...Notes that the applicant submitted a medical report from the Mornagia prison dated March 23, 2012, which stated that the applicant, upon admission to the penitentiary institution, reported that he had been subjected to violence during the 10 days preceding his imprisonment; that the examination also revealed tissue swelling with pronounced pain of the left big toe and plantar dermabrasion; and that the X-ray showed a fracture of the left big toe. The Committee...Takes note of the applicant's allegations of a large number of physical and psychological consequences of torture, which are confirmed by the medical reports provided. The Committee...Notes that the State party, taking into account the applicant's state of health, did not order a medical examination following the initial examination at Mornagia prison on 12 September 2009. and did not provide any comments on the applicant's allegations that he then informed the doctor about the ill-treatment he had been subjected to. In these circumstances, the Committee concludes that the facts as presented by the complainant constitute torture and cruel, inhuman and degrading treatment and that the State party has violated its obligations under articles 1, 2, paragraph 1, and 16 of the Convention. With regard to article 11, the Committee considers that the information provided by the State party on its efforts to prevent and combat torture is general and does not indicate the existence of specific measures aimed at preventing acts of violence committed by police officers and ensuring that persons arrested, detained or deprived of liberty are not have been subjected to acts of torture by or with the connivance of the authorities (See communication No. 456/2011, Colmenares et al. v. Bolivarian Republic of Venezuela, Decision adopted on May 15, 2015, paragraph 6.7.). The Committee therefore considers that the State party is responsible for the violation of article 11 of the Convention (paragraph 7.4 of the Decision).
Regarding alleged violations of articles 12 and 13 of the Convention due to the lack of a prompt, independent and effective investigation by the State party into allegations of torture, the Committee takes note of the complainant's allegations that he reported torture to investigators during his testimony, but they did not take any action in this regard. The Committee notes that one of the applicant's lawyers informed the investigator in September 2009 about the ill-treatment of which his client had been a victim during interrogations, and that the investigator did not take these allegations into account, despite the obvious signs of torture on the applicant's body. The Committee...Notes the testimony of another lawyer, who claims that he himself drew the investigator's attention to the facts of ill-treatment of his client, and takes note of the complaint of torture filed on behalf of the applicant on September 26, 2009. The Committee...Notes that, according to the applicant, in 2011 the prosecutor informed him that the complaint of torture filed by his lawyer on 26 September 2009 had been handed over to the investigator on 12 June 2009, i.e. before the applicant's arrest. The Committee notes that in its observations, the State party claims that an investigation was initiated into the fact of torture, but does not specify the date of its commencement and does not provide any information on the progress of the proceedings in this case or on the initiation of prosecution against persons allegedly responsible for acts of torture and ill-treatment, although after More than six years have passed since these events. The Committee...Notes that, according to the decision of the Tunisian court of First instance, the applicant confessed to the acts of which he was accused (paragraph 7.5 of the Decision).
Taking into account the time that has elapsed since the complainant tried to have the proceedings resumed before the national courts and the lack of sufficient information provided by the State party on follow-up to the complainant's complaint, the Committee considers that the State party has failed to comply with its obligations 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 7.6 of the Decision) (See Niyonzima v. Burundi, paragraph 8.5.).
The Committee notes the absence of an investigation into acts of torture and the absence of any rehabilitation measures after the ill-treatment complained of by the complainant, which resulted in, inter alia, a fractured thumb, back pain, a fractured jaw, hearing impairment and psychological trauma. In this regard, the Committee considers that the applicant was deprived of the right to compensation and compensation in accordance with article 14 of the Convention (paragraph 7.7 of the Decision).
The Committee notes that, according to the complainant, the State party violated its obligations under article 15 of the Convention because the complainant was convicted on the basis of confessions obtained under torture. In this regard, the Committee notes that, in the complainant's opinion, the confession he signed under torture was used as a basis for his detention for more than six years. The Committee notes that the State party has not refuted these allegations and has not included detailed information on this issue in its comments sent to the Committee...The Committee considers that the State party had an obligation to verify the complainant's allegations that he had confessed under torture and that, by failing to carry out such verification and using the statements received during the consideration of the criminal case against the author, the State party violated its obligations under article 15 of the Convention (para. 7.8 Decisions) (See Niyonzima v. Burundi, paragraph 8.7.).
The Committee's conclusions: the facts presented indicate a violation of articles 1 and 2 ... and articles 11-16 of the Convention (paragraph 7.9 of the Decision).